Public Bill Committee

[Frank Cook in the Chair]

Clause 7

Political restrictions on Electoral Commissioners and staff

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Michael Wills: I welcome you to the Chair, Mr. Cook. I am sure that we will benefit from your guidance as we make further progress on this important Bill.
I was responding to the hon. Member for Cambridge, who had referred to the briefing note put out by the Electoral Commission on the relaxation of the political restrictions on commissioners. He was asking, in the spirit of inquiry more than anything else, why we had not followed the commissions advice.
The Government are aware of what the commission feels about the matter, but I am afraid that our view is different. We take the view of the Committee on Standards in Public Life that continuing with the current 10-year rule for staff is not proportionate or necessary to ensure the impartiality and independence of staff employed by the commission or, more broadly, the commission itself. Obviously, there must be some restrictions. We think that 10 years is too long but five years is about right. It is a matter judgment, and that is our judgment.

Eleanor Laing: I do not wish to take up much of the Committees time on this matter, as we dealt with most of the principles of political involvement of commissioners when we considered amendments to the preceding clauses this morning. I simply want to put on the record that I agree with what the Minister just said. It is right that there should be restrictions, and we must make a distinction between those on the commission who are representatives of the political world and those who are not. I think that that distinction is clearly made in the clause, which we support.

Andrew Tyrie: I have had a chance to remind myself of the content of clause 7I did not get enough time to do that during the four minutes of debate on it before lunchand I have realised that there is some substance to the clause that needs an airing and deserves attention before we move on to further clauses. I am grateful to the hon. Member for Cambridge for flagging this up rather than taking the clause on the nod.
The clause is important because it creates two classes of commissioner for the first time, and we need to pause a moment to ensure that we have them right. We need to bear it in mind that the purpose of the clause is to bring some political experience into the commission, which many have argued has not shown enough political experience of the system that it is trying to regulate. This is why, after much careful thought, the Committee on Standards in Public Life decided to argue in favour of a relaxation of the 10-year bar on political involvement. Its recommendation is set out in paragraph 3.29 on page 59 of its report. My question is whether what is in clause 7 is consonant with what is in that recommendation.
I am a little concerned that we may find that nearly one half of the appointed commissioners have recent political experience, as set out in the clause; and that under this clause the other groupin the past, it would have had no ties with a political party for 10 yearsmight also have been MPs only five years ago, hammering things out in a Committee such as this, for example, or across the Floor of the House. In other words, we may find ourselves with a group of commissioners all of whom have a good deal of very recent political experience.
I am not entirely sure that I am happy with that, so I am not entirely sure that I am happy with the move from 10 to five years for the remaining classthat is, the original classof commissioners. I would like the Minister to give an explanation for that reduction from 10 to five years. I have a couple more points that I would like to make while he is thinking about that one, unless he wants to intervene on me now; if not, we can wait until I have dealt with the other points.
Another point concerns the staff, whom we have not mentioned at all. Clause 7(2) proposes that the 10-year bar that applies at present be reduced to five years for the chief executive and to one year for all other staff. That is also a substantial change when taken together with the change for commissioners. I wonder whether we ought to considerI throw this thought to the Ministerextending the five-year minimum to several other important jobs, rather than just limiting it to the chief executive of the Electoral Commission.
I have been a participant in the informal group whose job it was to try to fill the gap that the Electoral Commission realised existed when it wanted more political experience to be made available to it. That group has been functioning for many years. As a member of it, I was initially sceptical about the need for this clause at all, and wondered whether the issue could be better addressed, for example, by putting that group on a formal basis, with the authority to publish views of dissent if it disagreed with actions of the Electoral Commission, which itself would be a constraint. If a group of politicians, all from different parties, said all at once that they disagreed with something and that the commission was going down the wrong route, that might act as a restraint on the commission.
This issue was the subject of the Hayden Phillips process. I participated in that process, as the Minister knows, and I participated in all the talks about this issue. It was largely decided in the margins of the Hayden Phillips discussion to go down this route as it was probably the least bad option, recognising that there are pros and cons for whichever route one takes. I am now a convert to the idea of a reduction, and I will not divide the Committee on this point. However, I would be grateful for the Ministers response to a number of concerns. First, when we consider the changes that we are making to staff as well as to the commissioners themselves, we are making a substantial change all in one go. Secondly, is the reduction from 10 years to five for commissioners necessarily right for the reduction for the non-political group? Thirdly, is the reduction from five years to one for all staff except for the chief executive the best way forward?

Michael Wills: As always, the hon. Gentleman makes some valuable points and broadly speaking, they reflect the views of the Electoral Commission. Of course we are aware of those views and we have taken them into account. The hon. Gentleman said, using carefully chosen words, that he was not altogether sure that this way was the right way. Let me try to give him greater certainty, so that he can go forward into the afternoon in comfort and relaxation.
There is no difference in principle between us on the fact that there needs to be some form of sanitising period; I think that that is consensual. That is why we have maintained the existence of that sanitising period. The only question is how long that period should be. We have taken the view that to maintain the current restrictions is disproportionate and restrictive on individuals right to participate and perhaps to bring their interests to bear in this form of public life. There needs to be a sanitising period. Some of the recommendations have come from the Committee on Standards in Public Life. The hon. Gentleman is right to say that the decision to reduce the restrictions on other commissioners from 10 years to five was taken by the Ministry of Justice. Therefore, by and large, we have imported the view of the Committee on Standards in Public Life, except in that one respect.
I want to offer to the hon. Gentleman an anecdotal reassurance and then a reassurance in principle about the approach that we have taken. The anecdotal experience is that, by and large, being politically active is an addiction and an obsession. We all know how all-consuming political activity can be. By and large, when people decide, for whatever reason, to detoxify and leave the pursuit of politics, they tend to stay clean. After a break of five years or one, they do not tend to decide to seek election and parliamentary office. They have either had their fill of it and they move on, or they have never had their fill of it and never move on. Therefore, if people take a break, they move on from that partisan participation. That is the anecdotal reassurance.
Much more importantly, we must not lose sight of the factwe come back to this point over and over againthat everyone we are talking about will be selected on merit. Those selecting them, whoever they may be, will clearly be conscious of the need to avoid any perceived or actual conflicts of interest. That is fundamental. All the concerns that the hon. Gentleman expressed are fundamentally important, but all the commissioners will be selected on grounds of merit, and with that will come the fundamental objective of avoiding any conflicts of interest, real or perceived. I hope that that gives the hon. Gentleman some reassurance about the approach that we have taken. It is a matter of judgment. This is the judgment that we have made and we think it adequate.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 1

Compliance with controls imposed by the 2000 Acts etc

Jonathan Djanogly: I beg to move amendment No. 79, in clause 1, page 1, line 7, after the, insert sole.

Frank Cook: With this it will be convenient to discuss amendment
No. 38, in clause 1, page 1, line 16, at end add
(4) In the 2000 Act section 13 (which makes provision about the promotion of the electoral and democratic system by the Electoral Commission) is repealed..

Jonathan Djanogly: We move to clause 1, which deals with the functions of the Electoral Commission. In fact, we are moving back to clause 1. There is always something about moving backwards in Bills. I should like to put it on record that we have found it difficult to prepare comprehensively for these clauses. They are the most technical clauses in the Bill, and it would have been helpful to have had more time. As a result, amendments have been rushed with little or no time for consultation. That includes the Government amendments that we received on Friday. Although it is good to have seen the amendmentsand I thank the Minister for having put some of them throughwe have not been able to consult on them for obvious reasons. Frankly, that is not the best way to make law. I hope that lessons will be learned from the experience that we have had in this Committee, although that is unlikely to be the case.

Andrew Tyrie: I am particularly perturbed that we have not had time to prepare for this Bill. The language has always been consensual. We will do this by working together. I cannot understand the mad rush. We are talking about not just legislation, but constitutional legislation at that. I wonder whether my hon. Friend wants to comment on that.

Jonathan Djanogly: Given that, one way or another, whether here or in the other place, the Bill is invariably going to stretch into the next Session, I agree with my hon. Friend about the rush. However, that is the situation that we face.
Let me move on to amendments Nos. 79 and 38. We generally support the aim of clause 1 and believe that it should be a tool for change. There is a need to refocus the commission on its core duties as a regulator. That is generally recognised by pretty much everyone, not least by the commission itself. The question is, how are we going to do that? Given the known weakness of the commission in its various functions, does the Bill go far enough in redefining those functions? The Bill gives the commission lots of new investigatory powers, for instance, but will it actually use them in the exercise of its functions, given the limited redefinition in the Bill? Do the functions need further focus than has been provided?
Let us examine the redefinition. Clause 1 will delete the original wording of section 145(1) of PPERA, which states:
The Commission shall have the general function of monitoring compliance
and replace it with the slightly more proactive wording:
shall have the function of monitoring, and taking such steps as they consider appropriate with a view to securing, compliance.
That emphasis on the proactive role of the commission is to be encouraged, as the bulk of the reports to date have recommended a need for it to act more courageously and to shrug off what some have seen as a passive attitude. In essence, clause 1 provides that in addition to its existing function of monitoring compliance with the various requirements, the commission shall also have the function of taking such steps as it considers appropriate to secure compliance with those requirements.
The aim of amendment No. 79 is to tighten the wording of the clause, to insert the word sole before describing the function of the Electoral Commission. The aim is that first, we will not be back here again in six years, with all the associated costs, to review the scope of the commissions duties because it has been able to take the path of least difficulty and resume a passive role and, secondly, to aid the commission and give it a clearer indication of what Parliament thinks its role should be. It may take time for the commission to readjust to its new role, so I propose a clear statutory signposting so that it can have the courage of its convictions to fulfil its mentoring and enforcement role, without the need to consider the wider issues for the electoral system. I hope that the commission and the Government see this is an enabling remit for the commission, rather than a restricting one.
Amendment No. 38 seeks to clarify the position. Given that the Bill seeks to refocus the commissions core duties on to its role as a regulatory body, we need to do away with a particular section in PPERA as it will, in effect, become all but redundant. To leave it on the statute books will serve no function other than to confuse the commission and those studying the legislation.
Section 13 of PPERA places a duty on the commission to promote awareness of the electoral and democratic systems. As my hon. Friend for Chichester so rightly pointed out in his submission to the Committee on Standards in Public Life review, this is not a matter for the commission; rather it is a matter for political parties. The amendment is designed to tie up the loose ends so that there is no room for future confusion.
Last night the Electoral Commission commented on this issue, and it is worth putting its position on the record. It said:
The Commission does not support amendment 38 which would remove our duty to promote public awareness of electoral systems and related matters. There is a strong case for ensuring that people get clear and reliable information about how to register to vote, and how to take part in elections, and for this information to be provided by the independent Electoral Commission.
Although the Committee on Standards in Public Life (CSPL), in its eleventh report, recommended that the Commission should no longer retain a wider statutory duty to encourage participation in the democratic process, it also recommended that the Commission should retain a clearly defined statutory duty for the provision of public information on the mechanics of the electoral process including electoral registration procedures, how to vote and explaining any changes to the electoral system.
The Commission no longer encourages participation in the broader sense discussed by the CSPL. We agree with the Governments response to the CSPL on the point that informing the public on the mechanics of the electoral system, including the registration process, is key to maintaining a strong democracy and we agree that the Electoral Commission should continue to fulfil this role.
While I can understand the Electoral Commissions position, it leads to a wider issue, namely: where is the line going to be drawn on what constitutes strict provision of public information, and how much of its time should be spent on undertaking that? Given the well recorded poor record of the Electoral Commission on that aspect, the Bill should be more specific. That is why I head back towards the measures contained in my amendments.

David Howarth: I have some sympathy with the overall aim of the amendments, although rather less sympathy with the precise terms in which they are drafted. The overall aim will be recognised by anyone who has had much to do with the Electoral Commission over the past few years, and is that of producing a commission that is more focused on its core tasksthe monitoring and regulation of political parties and the administration of elections. It has not been all that successful at its more general role of promoting democracy and participation and, on the whole, that has drawn attention and resources away from its core tasks.
The problem with the amendments is what they would do, and that is a separate question which we should consider in detail. As the hon. Member for Huntingdon explained, amendment No. 79 would insert the word sole into the legislation. However, he seems to have forgotten what it would insert that word intosection 145 of PPERA. After the words in clause 1, that section refers immediately to
the restrictions and other requirements imposed by or by virtue of Parts III to VII.
In other words, it misses out the requirements in parts I and II of PPERA, which unfortunately are rather important. The hon. Gentlemans amendment would rule out a role for the commission in those two areas. Part I includes provisions on a supervised role regarding boundaries in England, and part II is about the registration of political parties. The hon. Gentlemans amendment would leave us without any body responsible for the registration of political parties; I cannot support it.
There is more to amendment No. 38 than there is to amendment No. 79, but there is a difficulty. In its response, the commission said that it still wants to have the power to give information about how the electoral system works. That is the proper function of the commission and is part of the administration of elections. When there are different electoral systemsthe European Parliament system, for examplethe commission has a role in ensuring that the explanation for the system offered to voters is not only clear but fair, and that it is not biased in the direction of a particular party or group of parties. I agree that that role should remain, but that does not mean that the commission should also retain its broader position, which has had the effect of taking away focus from its core role.
As it now stands, section 13(1)(a) of PPERA details the commissions role in explaining the electoral system, and is worthy of retention. However, according to section 13(1)(b), the commission is supposed to promote awareness of
current systems of local government and national government in the United Kingdom and any pending such systems,
while section 13(1)(c) states that the commission should promote public awareness of
the institutions of the European Union.
It seems to me surprising that the commission should have such a role.
Although I am sympathetic to the overall aim of the hon. Gentlemans amendment and support its effect in those parts, overall it goes slightly too far. Nevertheless, I would be interested to hear the Ministers response to the issues I have raised.

Michael Wills: I am grateful for the spirit of the contributions to the debate from the hon. Members for Huntingdon and for Cambridge. We are broadly in agreement about where we want to go. Before I regretfully have to resist the amendment, I want to address the matter of lateness raised by the hon. Members for Chichester and for Huntingdon. Some amendments were tabled late, and we very much wish that that were not so. The team of excellent and extremely hard-working civil servants who worked late into the night to draft them certainly would have wished to have been able to deliver them earlier. However, everyone recognises that it is important to take account of the new Public Bill procedure, all the evidence that was received and the recent contributions to the debate. That is why it was not possible to table amendments sooner. I realise that issues are involved, but I mean what I have said on many occasions. We want to achieve consensus as far as possible, and it is important that we do so.
I remind the Committee that the White Paper on funding was published on 16 June and that the Bill itself was published on 17 July, so there has been a reasonable passage of time for members of the Committee to get their heads round a lot of the issues.

Andrew Tyrie: Does the Minister really think that it is a consensual and reasonable approach to expect Opposition Members to absorb amendments that were tabled on a Friday for debate the following Tuesday, when the whole purpose of the process in which we are engaged is to attempt, as far as we can, a constitutional change with which all parties can agree? Might it not have been possible to re-timetable matters so that we had a weeks interval between the Public Bill Committee-style evidence and the Standing Committee procedure? If we had had that, we would not have had such difficulties.
While we are at it, what on earth is the Governments Gadarene rush about in trying to get the Bill on to the statute book so quickly?

Frank Cook: Order. I can understand frustrations being expressed by all Members. I feel them frequently myself, but we are talking about specific amendments. Along with amendment No. 38, we are discussing amendment No. 79 to clause 1, not the processes regarding why it took so long in the past to draft amendments, or why it might take so long in the future. Can we address the amendments, please?

Michael Wills: Of course, Mr. Cook. There is a general consensus, including from the commission, that its role should be to withdraw from the wider role of encouraging democratic engagement, and therefore the Government have accepted the recommendations of the Committee on Standards in Public Life that it should no longer have that role. We have also accepted its recommendation that the Government should retain a clearly defined statutory role for the provision of public information on the mechanics of the electoral process, including election registration procedures, how to vote and an explanation of changes to the electoral system.
As we said in our response, the Government believe in informing the public of the mechanics of the electoral system, including the registration process. We have already had some exchanges in Committee about the importance of maintaining the register. We know that such practice is key to maintaining a strong democracy. Repealing section 13 of PPERA would prevent the commission from performing that vital function. Amendment No. 79, which would amend clause 1 to limit the commissions role to
monitoring, and taking such steps as they consider appropriate with a view to securing, compliance with
the controls imposed by the 2000 Act, would actually create a problem. It is clear that everyone agrees how important it is that the commission focus anew on its monitoring functions, and that it has appropriate powers to perform them effectively. However, the amendment goes too far. It would prevent the commission from performing any of its other legitimate functions, as set out in PPERA. The hon. Member for Cambridge has already alluded to that.
We have already said that we accept that the commission should no longer have a role in promoting that wider participation. We do not believe any legislative changes are required to implement that. Furthermore, we have already accepted the recommendations of the Committee on Standards in Public Life that the Electoral Commission should no longer have any involvement in electoral boundary matters and that the provision in PPERA that allows for the transfer of boundary setting functions to the commission should be repealed. We therefore believe that the amendments are not necessary and that they would prevent the commission from carrying out some of its remaining vital functions. I therefore hope that the hon. Member for Huntingdon will withdraw his amendment.

Jonathan Djanogly: The hon. Member for Cambridge explained the shortcomings of amendment No. 79 and I accept much of what he said. I think he understood that the underlying point is that we need to be satisfied with the focus of the commission. However, that is more of a matter for a stand part debate and I will come back to it then.
Again, I agree with the Minister that the drafting of the amendments is perhaps not up to the job, but I do not agree that the concept behind the amendments is wrong, which is, I think, what he went on to say. We do not think that the focus is right and so, although I will not press the amendments to a Division, we will consider the matter again when we move forward to the next stage of the Bill.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Ainger: I beg to move amendment No. 2, in clause 1, page 1, line 10, leave out may and insert shall.

Frank Cook: With this it will be convenient to discuss amendment No. 81, in clause 1, page 1, line 13, leave out , or is sufficient.

Nick Ainger: May I say, Mr. Cook, how pleased I am to be serving under your chairmanship again? The purpose of the amendment is to ensure that the Electoral Commission publish clear guidance for political parties, donors and those regulated by the 2000 Act. I note that Government amendment No. 125 uses the word shall in relation to other guidance that is to be published by the commission. I am surprised that the Government have not used the word shall in the clause.
This morning, we heard the words complexity and complexities used on a number of occasions about the Bill and the 2000 Act. Bearing it in mind that these are complex and important issues, particularly for the individuals and parties that might be affected by monitoring and regulation as a result of the 2000 Act and this legislation, clear guidance should be provided by the Electoral Commission so that people can refer to it and establish whether they are complying with the regulation and what they should do. It is interesting that clause 1 sets out the terms of reference for that guidance, which is extremely helpful:
(a) what it is necessary, or is sufficient, to do (or avoid doing) in order to comply with the requirement;
(b) what it is desirable to do (or avoid doing) in view of the purpose of the requirement.
In the Bill, we say that there should be clear guidance, but we do not say there shall be publication of that guidance. I would be grateful if my right hon. Friend the Minister explained why, in this part of the Bill, the Government say that the Electoral Commission may publish guidance, but elsewhere that it shall do so.

Jonathan Djanogly: We have added our names to those of the hon. Member for Carmarthen, West and South Pembrokeshire and others. Clause 1 would insert a new subsection (6) into the PPERA, requiring the commission to publish guidance on how to comply with the provisions of the Bill. That is recognition by the Government that the Bill introduces complex and administratively burdensome duties, which would have to be implemented by those at the lowest level of the party structure, who are often volunteers and have little or no legal training. The commission will need to produce guidance to assist parties at the local and national levels to bring their practices in line with the Bill. That will be a considerable undertaking for the commission in the aftermath of the Bills enactment. Failure to produce guidance in a timely and concise fashion would have potentially wide-ranging and detrimental impacts on both the commission and those who must implement the Bills provisions.
Peter Wardle, the chief executive of the commission, highlighted the commissions own emphasis on the need for guidance in the second sitting of the Committee last week:
There are lots of questions about the Bill at the moment. We are already beginning to try to work out what our guidance would look like and we would hope to have that guidance in the public domain by January. I do not think that it is possible to get anything useful and in detail in the public domain before then.[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 47, Q113.]
Can the Minister give us some idea of the projected cost to the commission of producing the guidance? Will the commission be given any additional financial or personnel resources to handle the increased work load as a result of the legislation being passed? Have the Government consulted with the commission on its needs? If so, could the Minister circulate a copy of the commissions response?
The aim of amendment No. 2 is, again, to give a clear indication to the commission about the focus of its remit. The amendment looks to reverse some ambiguity in the Bill. That the commission
may prepare and publish guidance
implies a level of discretion. We wish to ensure that guidance is given the priority it needs and that the commission is compelled to issue it. The publication of guidance should form a key part of the commissions role in the coming years, while the Billwhen enactedand its requirements are bedding down. That would not only assist parties and their officials in complying; it would also go a long way to rectifying the commissions damaged reputation in the eyes of many.
On amendment No. 81, likewise, we find the inclusion of the phrase or is sufficient to be strangely confusing and ambiguous. What is necessary and sufficient should be one and the same. If something is sufficient, but not necessary, we are possibly imposing a split level into the test, which is surely not the best way forward. I shall be interested to hear what the Minister considers necessary and what he considers sufficient. Given the complexity of the Bills schedules and the clear possibility of confusion, we as legislators should be doing as much as humanly possible to ensure that we are clear about what must be done to comply with the law. As I noted, the commissions guidance will prove invaluable when parties go about implementing the Bills provisions. Guidance should be published as quickly as possible, setting out clearly what needs to be done. Let us deal in black and white as much as possible. The phrase or is sufficient introduces grey areas, which are the last things that we or the commission need. We suggest the phrases deletion.

David Howarth: I, too, support amendment No. 2, and like the hon. Member for Carmarthen, West and South Pembrokeshire, I look forward to an explanation from the Government as to why, in this part of the Bill, the commission is given a power to give guidance, whereas elsewhere it is given a duty. The commissions response implies that a duty here would produce a vast amount of work, which leads to the question of why that is not the commissions view of its existing obligations under the law. There is a link between this and the previous debateif the commission is being asked to focus attention on its regulatory activities rather more than in the past, that should free up resources from the other functions to devote to this area.
However, I cannot support amendment No. 81, which, if anything, is the wrong way around. The difference between necessary and sufficient is as follows. If a party official trying to comply with the law is told that various things are necessary, they are told that they have to do them, but not that that is enough to comply. A lot of things might be necessary, but not add up to enough to comply with the law. If they are told what is sufficient to comply, that is much better. It gives them a safe harbour, because if they comply with the guidance, they are okay and know that they have not broken the law. It seems to me far more important to have guidance on sufficient conditions for compliance than on necessary conditions. If the hon. Member for Huntingdon wanted to remove part of the clause, he would have done better to remove the word necessary.

Michael Wills: I will address some of the detailed issues that have been raised in a moment. First, I shall explain briefly why we will have to resist both amendments.
Amendment No. 2 is unnecessary as it would be unhelpful to have in primary legislation such a hard requirement on the commission. We have every confidence that the commission will produce the guidance as necessary, and I am aware that it has already started work on it. However, in practice it would be difficult for a statutory requirement that it must produce guidance to work. What would constitute the guidance having been produced? Who would judge that it was adequate and that the commission had fulfilled its statutory obligation? It seems to me that the amendment would open it up to judicial review, which can hardly be a sensible recourse given what we are trying to achieve in the clause. A permissive power for the commission to produce guidance is sufficient. It will be able to keep the guidance updated and refreshed and focused on key areas of uncertainty. Amending the Bill in the way sought in the amendment would not add anything.
Amendment No. 81 would limit the commissions guidance to setting out what it is necessary or desirable to do, or avoid doing, to comply with the requirements of the 2000 Act. We believe that the clause will allow the commission flexibility to decide what information it should set out in its guidance to help regulated individuals to comply with regulatory requirements. The amendment would unnecessarily restrict the commissions flexibility.
The clause will allow the commission to produce a wide range of guidance, including best practice guidance and pro formas that parties can complete if they wish to comply with the requirements on them to report to the commission. We believe that that flexibility will help Members and other regulated persons.
Both my hon. Friend the Member for Carmarthen, West and South Pembrokeshire and the hon. Member for Cambridge asked why in some parts of the Bill we suggest that the commission should be given a power, but in others we seek to impose a duty on it. Quite simply, the difference is that the commission shall produce guidance on the use of investigatory powers and sanctions, but it may produce guidance on the requirements of the 2000 Act. That is because sanctions and powers are a much narrower issue with potentially serious consequences, and the commission must therefore explain how it intends to use them.
The requirements of PPERA are many and complex, and the Electoral Commission must be empowered to judge which aspects require explanation. Requiring guidance on every single aspect of the Bill would make it very difficult and effectively inoperable. I hope that that gives some reassurance to my hon. Friend and the hon. Gentleman about why we have adopted the distinction between the application of the power and the duty.

Nick Ainger: I am still a little puzzled. The Minister and the Electoral Commission tell us that they are producing the guidance, so why is the requirement so onerous? If it is producing the guidance, it does not seem to be too onerous for it to do so. We being told that putting shall instead of may and creating a duty would somehow be asking far too much, and would take up far too much time. Will my right hon. Friend explain that?

Michael Wills: As I was saying, the requirements of the Act to which the measure would apply are complex and various. The guidance being produced is a matter for the commission, and it is doing what it feels is appropriate. Placing a duty on it to provide guidance on every aspect of the Act would be a different matter and would be more onerous. I hope that that answer reassures my hon. Friend.
The hon. Member for Huntingdon asked whether we have consulted the Electoral Commission. The answer is yes; we consult it frequently and will continue to do so.

Jonathan Djanogly: On resources?

Michael Wills: There has not been any formal communication with the commission about resource requirements, but we discuss all those issues with it, and will continue to do so. I hope that I have given enough reassurance for the amendments to be withdrawn.

Nick Ainger: As I have indicated to my right hon. Friend, I am still a little puzzled. The good news is that the commission is producing guidance; that is absolutely essential. We might have to return to this issue, but I shall not press the amendment.

Jonathan Djanogly: Parliament is putting in place some pretty material changes here, not least in relation to the commissions functions. The Minister has just called them complex and various, but I do not see the sense of urgency from him that this matter deserves. Electoral law has consistently fallen into abeyance in the past because of a lack of focus. That is not fair on our party workers, who will need the guidance urgently, and that is why I shall ask the Committee to divide on the amendment.

The Committee divided: Ayes 8, Noes 9.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Jonathan Djanogly: Political party funding and the organising of elections have been controversial in this country for centuries. One has only to look at a series of reports going back over the years to see that those perennial problems have presented challenges to the electoral system and political parties alike throughout history. To the extent that society changes over time, so do its expectations for electoral and funding probity, and changes then follow. However, the problem has become far more acute under the present Government.
As I said on Second Reading, this is a half-hearted Bill, which is characterised more by what is missing than by our wholesale objections to its content. We are missing an opportunity to rectify the damage and add legitimacy back into the system. We are not the only ones to think that way. A key finding of the Joseph Rowntree Reform Trust was:
Public confidence in the electoral process in the UK was the lowest in Western Europe in 1997.
An effective electoral system and its administration must be the foundation of our democracy. For a democracy, we need elections. Those elections cannot be free and fair unless the rules governing them are fair and coherent, and those rules must be administered properly and, if necessary, enforced actively. Party funding regulations are just as important.
Given recent experience, we agree that the regulatory framework needs strengthening. The principle, set out in clause 1, that the commission is now required to both monitor and regulate compliance has long been promoted by the Conservative party, although we will need to tie down exactly what that means. We hope that it will result in the commission doing less of what it should not be doing, such as spending millions of pounds on increasing voter turnout. That is our job as politicians, not the job of the commission. As such, we in the Conservative party cautiously accept in principle some of the proposed additions to the investigatory and sanctioning powers of the Electoral Commission, although we will want to examine more closely how they will work in practice, as we will be concerned to ensure that they do not destroy donors willingness to participate.
Part I of PPERA contains 21 sections and two schedules that created the commission and set out its general functions. The commission was established as a corporate body independent of any Department. Sections 5 to 13 provided it with a broad range of functions primarily in relation to the oversight of electoral matters in the UK. Its aim, in essence, is to ensure the integrity of and public confidence in the democratic process.
However, the mandate set by the Government in the legislation was unintentionally broad and ultimately far wider than originally envisaged. The commission sees its function as ranging from the regulation of political donations and expenditure by political parties through to the promotion of greater participation in the democratic process and responsibility for electoral policy review. That is a very extensive remit for a body that, according to the figures on its website, has only six commissioners, one chief executive, an executive team and an employee force of fewer than 200 people.
After the enactment of PPERA, several years passed before the problems associated with the breadth of the remit became apparent. The commission itself, in a report that it published on PPERA in 2003, queried the extent of its role and whether it had sufficient powers to ensure that there was compliance with the Act. By the start of 2007, the problem had become so acute that it was hampering the commission in its work.
The 11th report by the Committee on Standards in Public Life, entitled Review of the Electoral Commission, was published in January 2007 and attracted considerable press coverage. While commending the work of the commission to date, it noted rather alarmingly:
Evidence received by the Committee strongly suggested that it has been less successful in acting as an effective and strategic regulator in a manner which ensures public trust and confidence. The root of this, from the evidence we have received, appears to lie in the Commissions interpretation of its regulatory mandate in PPERA and, in consequence, its overly passive role.
That criticism of a too-passive approach to its role as regulator has dogged the commission in recent years. Peter Wardle said in evidence to the CSPL:
The legislation very much puts the onus on the parties to comply and some of the information that we need, which can trigger our investigations, does not come into our possession until such time as the parties do that under the legislation.
For a regulatory body whose total net operating costs have exceeded £22 million for both 2006-07 and 2007-08, that is a rather depressing perspective on its role as a regulator.
Of more concern, perhaps, was that the Government seemed to support that passive role when only 18 months ago Lord Falconer stated in evidence for the same CSPL report:
The Electoral Commissions role, as set out by PPERA, was not to investigate. It was simply to be a recipient of information. They were in a sense exactly the same as the Register of Companies (Companies House).
The CSPL expressed considerable surprise at the time at those comments. Will the Minister address that issue and tell us why there has been a change of approach from the Government, as welcome as it is? It is important that that is placed on the record.
The explanatory notes to the Bill indicate that the commission has estimated that the additional costs arising as a result of the changes to its powers and sanctions will amount to about £650,000 per annum. Could we please hear from the Minister how likely it is that it will be able to meet those costs from its existing budget? Details on the budget would be helpful.
Of more concern is that, once again, the Government are swinging wildly between opposing sides of the argument: from a placid commission to a full-throttled regulator with all the powers needed to enter peoples homes. I do not say that as an indication of a likely approach that I have received notice of from the commission. Rather, it is an observation of the potential held in the wording of the Bill. A lack of balance runs throughout the Bill, and I will return to it in coming debates as I attempt to highlight some of the Bills inconsistencies.
Our concerns focus on the tendency of the commission to travel the path of least resistance and sometimes spread itself so widely on less vital issues that it has been left wanting when faced with larger problems. I would like to take this opportunity to quote from the submission of my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) to the CSPL in June 2006. It adds considerable weight to what I am saying. He stated:
We have concerns that the Commission may have attempted to do too much, such that it has spread itself too thinly and failed to deliver on inflated expectations of what an independent electoral watchdog should achieve. This problem of mission creep is not unique to the Commission and has affected other public sector agencies...Although the Commission has a statutory function to review and issue reports on matters relating to elections, it has produced an excessive flurry of investigations into every single aspect of the electoral system. We are concerned that the Commission may have adopted the institutional mindset of change for changes sake.
I will give one more short excerpt. My hon. Friend continues:
We would suggest that the Commission has interpreted its remit to believe that elections must be modernised as an end in itself. RPA2000, PPERA, and successive legislation, have created an institutional instability in the electoral system.
My hon. Friends comments are just as relevant today.
In a classic example of public choice theory in action, these reviews have resulted in the conclusion that the Commission should have a bigger budget and more power. The need for the Commission to take on new functions has been pressed on us...We recognise that now a central electoral body exists, there is an inevitable logic in locating certain central functions with the Commission. Mirroring this trend of constantly seeking to expand its role, the Commissions expenditure has spiralled from £7 million in 2001-02 to £26 million in 2006-07.
That has been a common feature of the commissions performance to date. It bemoans its lack of powers, yet only 29 people have been prosecuted for crimes under PPERA. Compare that with the 400-plus cases of alleged electoral fraud that have apparently occurred in the same period, and one begins to get the impression that better utilisation of what the commission has is needed as much as more powers.
Furthermore, the commissions predispositionalbeit somewhat reduced in recent months, it has to be saidto include itself in non-regulatory or enforcement activities such as the promotion of the electoral system and encouraging people to vote has, in the view of many, detracted significantly from its role as a guardian of the electoral systems integrity. As my hon. Friend the Member for Chichester so accurately stated in his submission to the report of the CSPL:
The first area where I think a mistake has probably been made was in asking the Electoral Commission to take responsibility for voter participation. I am confident, in retrospect, the majority of people think that it should not have...I think that is the responsibility of political parties. If people are not interested in politics it is our fault, primarily.
I presume that our refers to politicians.
Yet that element of the commissions work is supported by a ring-fenced £7.5 million, or some 34 per cent. of last years costsmore than one third of its expenditure. I believe that those figures are right, but I would appreciate it if the Minister could confirm that that is the case. The Governments original rationale for placing this function within the remit of the commission was alarm at the continuing drop in turnout at various elections. While the reasons individuals do not vote are highly subjective, it is surely a political party issue rather than a commission one. As my hon. Friend the Member for North-East Hertfordshire the then shadow Secretary of State for Constitutional Affairs, noted in the Committee on Standards in Public Lifes report,
I think it is an important issue, but I think someone else should be doing it.
Even more damning is the suggestion from the CSPL that the evidence of any impact, in terms of increased turnout in elections on the back of the Commissions work, is at best mixed and some would argue negligible.
So this is the commission we find ourselves confronted with today. We accept the need for an effective commission and recognise it as a necessary and vital part of the modern electoral fabric. It is its duty to act as a watchdog of party financing and electoral administration. If we get it correct, people will have faith in the system and its integrity and we shall not undervalue the role of promoting the integrity of the system when assessing peoples propensity to vote. In other words, if I do not trust the system, why should I bother voting? That is the fundamental issue that the Government consistently shirk in the Bill, in which they continue, wrongly, to put turnout on the same level as countering fraud. The priority needs to be to refocus the commission, and that is what the amendment and new clause 1 sought to do, which is why we will be coming back to it at later stages.
What we have got, through a combination of deficiencies in the PPERA, is a mandate for the commission that is too weak in some cases and too broad in others. This has left us with an enforcement body that has fallen short of fulfilling both its potential and its important statutory duties. We will want to ponder where we have got to before the Bill is considered on Report, but I am not satisfied that we are yet where we want to be. It would be helpful if the Minister spent a little time analysing how we got to this position. Was it poor management, a poor legal structure, or a bit of both? Is he confident that the Bill, following the implementation of clause 1, is going to deal with the problem?

Michael Wills: I may just have glimpsed a shadowy ghost of the consensus that I have been so avidly seeking throughout today. Apart from the occasional moment when the hon. Gentleman strayed into some general partisan comments about the overall nature of the Bill, there is a large measure of agreement on a lot of the substantive issues. Before I set out answers to some of his questions and our case for the clause, I point out that it was remiss of me not to address a couple of the important questions that he asked earlier.
On the difference between necessary and sufficient, although the hon. Member for Cambridge had a good go at it, I try never to avoid anything and I can tell the Committee that necessary will detail what is required in cases where the Bill requires clear steps to be taken, while sufficient will provide what needs to be done as a bare minimum when the nature of the obligation may be less clear. I hope that that clarifies that important point. Let me clarify a further point. In the hon. Gentlemans previous remarks, he seemed to suggest that my comments about complex and various in relation to the previous group of amendments referred to the Bill. In fact, they referred to the 2000 Act, which has been in effect for eight years, so that was the point that I was making.
Clause 1 is an important part of the Bill for a lot of the reasons that the hon. Member for Huntingdon has set out. It emphasises that the commission has a role in monitoring compliance with the controls, but it also goes further and sets out the commissions role in securing compliance. That will make it clear that a key part of the commissions monitoring role is to investigate allegations or suspicions of regulatory failure, and to consider whether to take further action.
The clause also enables the commission to prepare and publish guidance setting out its opinion of what is required under the legislation referred tosection 145(1) of PPERA. The clause clarifies the commissions role by making it clear that it has the responsibility not only to check whether relevant restrictions and requirements are being complied with, but to take the steps it considers necessary to ensure that the rules are complied with, and to deter non-compliance. The clarification of the commissions role is intended to address a recommendation of the Committee on Standards in Public Life.
The 2007 report on the Electoral Commission drew on evidence received by the committee that suggested the commissions interpretation of its regulatory mandate in the 2000 Act had led it to take a passive approach. In turn, that made it a less effective regulator and led to less public trust and confidence. The committee therefore recommended that the 2000 Act should be amended to make it clear that the commission has a duty proactively to investigate allegations or suspicions of failures to comply with the regulatory framework.
In particular, the committee recommended that the word monitor in section 145 of the 2000 Act should be replaced by the word regulate. However, we believe that such an amendment would not sufficiently achieve the underlying intention of the committees recommendation, which is to place greater emphasis on the active steps that the commission may take in order to perform its role. The wording of the clause will bolster the commission in performing its role and will place the correct emphasis on the importance of an active approach to regulation. We believe that that will result in a strengthened regulator. It is essential that the commission and those whom it regulates be in no doubt about the extent of the commissions role as a regulator of party funding and campaign expenditure.
The second aspect of the clause relates to the commissions ability to publish guidance, and is necessary to ensure that regulated individuals and political parties fully understand what they are required to do, or avoid doing, to comply with party funding legislation. We recognise that party funding rules are complex and that those charged with compliance are often volunteers who may lack financial skills. The clause is intended to reflect that. Such guidance might cover frequently asked questions, or it might set out some scenarios on novel circumstances and steps that the commission would expect a regulated individual to take to comply with regulatory requirements in those circumstances. The clause also allows the commission to produce best practice guidance or pro formas that parties or regulated donees might like to use to submit returns to the commission. The intention of this part of the clause is to ensure that the commission takes an active role in helping those whom it regulates to comply and avoid inadvertent breaches of the rules.
The hon. Member for Huntingdon asked various questions about the budget and was interested to know whether the commission would have sufficient funding to enable it to discharge these new duties. He will be aware that the commission is funded directly from the consolidated fund, after the Speakers Committee, about which the Committee has now been much enlightened, has approved its estimates. I am happy to write to him with the details of that budget. Indeed, I am sure the commission will be happy to let him know directly what its views are about the adequacy of its funding.
The hon. Gentleman spent a reasonable amount of time asking how we got to this position. I do not want to exhaust the Committees patience by providing a blow-by- blow account, but it is not surprising that in an area as complex and important as this, the legislation needs to be constantly revisited to ensure that it is appropriate to the circumstances. I do not need to remind the Committee of the various issues that have arisen from all parts of the House in recent years, which have suggested that we needed to take a fresh look at this subject. I have no doubt that, no matter how important and useful the Bill is in achieving its objectives, we will revisit these issues in legislation.
Incidentally, it has always been clear that, since the 2000 Act, the role of the commission should be that of a regulator. Section 145 of that Act makes it clear that the commissions role is to monitor complianceclearly, that is a regulatory roleand that it should do so by taking appropriate steps. That is a clear nod towards investigation and possible sanctions. That is not a new role, but it does need refocusing, as the hon. Gentleman clearly stated.
The clause is an important part of an important Bill and I hope that the Committee will support its inclusion.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2

Investigatory powers of Commission

Question proposed, That the clause stand part of the Bill.

Jonathan Djanogly: We move on to clause 2, which deals with the new investigatory powers of the commission. PPERA created the commission and, at the same time, provided it with supervisory powers. Section 145 set out the general function of the commission as the regulator and monitor of compliance with part III, on
Accounting requirements for registered parties,
and part IV, on
Control of donations to registered parties and their members etc.
To complement that, section 146 empowered the commission to require a predefined group of entities to provide it with information relating to their financial affairs. That predefined group included registered political parties, recognised third parties, permitted participants in a referendum campaign, regulated donees and candidates at an election.
A person authorised by the commission may also enter the premises of a registered party, a recognised third party or a permitted participant to inspect their financial records. However, according to the Secretary of State for Justice, those powers have been used only once. On Second Reading, he said:
In any event, the existing powers have been used only once since the Electoral Commission was established nearly eight years ago[Official Report, 20 October 2008; Vol. 481, c. 50.]
The first question to ask is, why have they not been used more frequently?
The scope of proposed new section 146 goes well beyond that, and the Minister must show some evidence of the need for such an extension. In particular, it would interesting to know what formed the catalyst for the Government to give those powers to the commission, what format the consultation process took and who was consulted. Can the Minister provide figures for the number of instances in which the commission has failed in its duty as a regulator on the basis of a lack of those proposed powers? In other words, have the Government reviewed to what extent the failure to regulate has so far been as a result of inaction by the commission, or of a lack of appropriate legislation? When does the commission feel that there could be a need to go into the homes of individual donors? How frequently is that likely to happen and on what basis?
Clause 2 seeks to replace section 146 of PPERA, thereby providing the commission with increased powers of investigation. Subsections (1) and (2) would insert and give effect to what is now schedule 1 of the Bill, while subsection (3) makes provision for penalties for offences under the new schedule. Among other things, schedule 1 would enable the commission to require access to financial records and information, and to enter premises to inspect and make copies of relevant documents.
Paragraph 1(1) of schedule 1 is particularly concerning. It would extend the power under section 146 of PPERA to enter premises that had previously been restricted to registered parties, permitted participants and candidates at elections. Paragraph 3 of schedule 1 would include other bodies or individuals such as donors. Those investigatory powers can be exercised in cases where the commission has reasonable grounds to suspect that an offence or contravention has been committed. Will the Minister give an early indication of what he thinks would constitute reasonable grounds?
This provision has the potential to erode the willingness of law-abiding citizens to donate to political partiesa point that has been made by many people. It would take only one heavy-handed and well-advertised use of those powers in someones home or office for other legitimate donors to take fright at the prospect of giving money to political parties. Giving money to political parties is, for the vast majority of contributors, done for the noble and civic intention of wishing to promote a better society for all. To destroy or hinder that instinct would be inexcusable, let alone anti-democratic. That is why we have tabled a number of amendments to schedule 1. The stakes are high and we must thoroughly justify the need for these new, sometimes severe powers.
In so doing, the Minister should bear in mind the comments of Peter Wardle, chief executive of the commission. Giving evidence to the Committee on the extension of the commissions powers to cover regulated donees, he expressed reservations over the extension and said:
We feel that the current powers are adequate to do the job we need to do regarding inspection. One can see why, for completeness, the powers have been extended, but we are not convinced that we need these powers.[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 43, Q104.]
I read with interest the White Paper published by the Ministry of Justice in the run-up to the Bill. I note in particular the sections entitled, The case for change, through to, The Governments proposals for reform. However, in the section entitled, The case for change, I was left somewhat bewildered by the fact that there was no mention of the need for the commission to have the power to demand documents from individuals. That does not appear until the proposals on page 27:
To provide the Commission with a widened range of sanctions and investigatory powers to enable it to become a more robust regulator. The Commissions powers to obtain information would be extended to allow it to require the production of information from relevant individuals not currently covered by the PPERA powers where it is appropriate to do so...This would need to be accompanied by appropriate safeguards.
Furthermore, there is no recommendation that the commission should be able to enter the homes of individuals. Will the Minister tell us from whom that recommendation first came?
The commission states that the power of entry is consistent with that used by other regulators. Will the Minister tell us what circumstances have necessitated the use of such powers? How often does he or the commission envisage the powers being used? Is the Minister also aware of the commissions own concerns that the safeguards for access to premises occupied by regulated doneesincluding individual MPs and other holders of elective officemay not be robust enough? Has the Minister taken up the commissions offer to consider further how to safeguard such powers effectively? Does the Minister not find it concerning that the very organisation that they seek to empower shies away from the arbitrary power being handed to it?
According to a press release issued by the Home Office in July there are now 1,043 separate laws that allow state inspectors to enter peoples homes and premises. On 15 July, the operational policing section of the Home Office slipped out a new detailed survey of powers of entry by state officials. There was no press release, no comment and no fanfare.
Of those 1,043 state powers of entry, 753 are exercisable under primary legislation and 290 through secondary legislation. In total, an estimated 430 new powers of entry have been created by this Government. Despite the Prime Ministers pledge last year to curtail those rights, a further 16 new laws are being pushed through Parliament that entrench or extend powers of entry.
In a speech last year, the Prime Minister pledged to curtail powers of entry with a new liberty test. He said that any change to entry powers would be accompanied by new guidance on using such powers and on the rights of members of the public to prevent their abuse. To paraphrase his speech, he made three points. He said that any change will be accompanied by guidance on how it is to be exercised; that individuals have the right to take action if that guidance is not complied with; and that we should consider whether we need to do more to offer redress for the individual against disproportionate use of those powers by the state.
From my reading of the Bill so far, not one of those limbs of the test has been complied with. Will the Minister explain why not, and when and how they will be, or is it simply that, given what I hope is not going to become the partisan nature of the Bill, the Government want to rush through the measures in time for the next general election?
We support the general need to empower the commission and to provide it with tools to be an effective regulator. However, unless we are careful, the effect of the measures will be to push people further away from the political process. As my right hon. Friend the Member for Horsham (Mr. Maude) rightly pointed out on Second Reading:
We all agree that the Commission must have appropriate powers to enable it to carry out its duties, but there is a real concern about the proliferation of search and entry powers.[Official Report, 20 October 2008; Vol. 481, c. 58.]
Donations to political parties are a way of volunteering assistance to the political process, and the last thing that we wish to do is discourage it. We must be careful to ensure that we do not introduce knee-jerk legislation when we have not fully considered its long-term impact. Given the rushed nature of the timetable for the Bill, I fear that we may be in danger of doing just that. It seems that the old saying more haste, less speed could be applied to the Government. In their desire to push through the Bill, I trust that they will not breach their own code of practice on guidanceor the Governments guidance on guidancewhich states that guidance should be issued at least three months before any regulation comes into effect.
I want to finish by saying that there is a twist to this. In answering a written question from my hon. Friend the Member for Chichester, the Minister noted that the consultation on clause 10 will be that of the Electoral Commission and not the Government. Will the Minister explain the position relating to clause 2 and schedule 1 and confirm that that full consultation will occur, whichever body undertakes it?

Frank Cook: I should draw the Committees attention to the fact that the hon. Gentleman made extensive reference in his contribution to various elements in schedule 1. I did not stop him, but that makes me less well disposed to the prospect of having a stand part debate on the schedule. If other members will bear that in mind, it will help me.

David Howarth: Thank you for those comments, Mr. Cook. It will take me much less time than the hon. Member for Huntingdon to say what I have to say about the clause. He is right to worry about powers of entry and other details that we will discuss when we debate schedule 1, but we politicians have to bear it in mind that Parliament has imposed lots of requirements on other people. When it comes to imposing similar requirements on politicians themselves, people who were not concerned before suddenly become concerned, and we must be aware of what that looks like to the outside world. The key is that we should not make arbitrary exemptions for ourselves. The principles that we apply when regulating politics are the same as those that we apply to the regulation of anything else. I hope that when hon. Members make points that might sound self-interested, they will at least have the grace to concede that similar points can be made about other peoples civil liberties, not just their own.

Andrew Turner: I should simply like an explanation of the measures on page 2. In the right-hand column, lines 5 and 8 mention summary convictions, and that is to be understood. Further down, however, there seems to be a rather peculiar situation in which the Northern Irish are entitled to six months off from what the English, Welsh and Scots have to pay as a penalty. Why are the Irish entitled to a lesser penalty than the English, Welsh and Scots?

Michael Wills: I shall be relatively brief, because many of the important points of detail that the hon. Member for Huntingdon has raised will be covered in our discussions on amendments. I shall simply say a few general words about the clause.
The distinguished contributions of the hon. Members for Huntingdon and for Cambridge clearly illustrate the path that we have tried to tread with the clause and the schedule. Of course, we have to be sensitive, as the hon. Member for Huntingdon has said, to the voluntary nature of a huge amount of political activity. We must be sensitive to the need to sustain that activity and to the risk of that effort being damaged by any legislation giving the Electoral Commission new powers. He made the case very well about the potential risks of this clause and, indeed, any legislation that seeks to regulate.
The hon. Member for Cambridge rightly points out that we must be extremely careful of seeming to exempt ourselves arbitrarily from regulations and controls to which we rightly expect other participants in public life to be subject. The controls that we propose are not dissimilar to those relating to the Financial Services Authority, for example. We have to steer a careful course here. My right hon. Friend the Secretary of State for Justice and I made it clear on Second Reading that we are sensitive to the concerns that hon. Members on both sides of the House have expressed about this clause and about the powers in the schedule to which it is so closely linked. The amendments that the Government have tabled, which we will discuss in due course, show that we are trying to respond to those concerns.
However, in relation to the overall position, it is worth reminding the Committee that the commission already has extensive powers under section 146 of the 2000 Act, which requires the disclosure of documents and gives it the power to enter premises and take copies of information for the purposes of carrying out its functions. It is a criminal offence, under the provisions of that Act, to fail,
without reasonable excuse, to comply with
a request or to obstruct entry and search.
The powers that we are discussing already exist. They have, from memory, only been used once in the past eight years. They have not been used extensively, but they exist. As we discuss the matter, we will see that these powers are being restricted. We have tabled amendments and we will discuss the details as we go forward and I will, if I may, address many of the particular points that have been raised in the course of that discussion. It is important to bear it in mind that, so far, we have consensus on the importance of the Electoral Commissions regulating the conduct of elections more effectively than it has done in the pastI think that all Committee members agree with that. If the commission is to do that, we have to give it the powers to be an effective regulator.
We have tabled a lot of amendments and I will bear in mind your strictures, Mr. Cook. However, if I may suggest it, there would be merit in, and the Committee would benefit from, a stand part debate on schedule 1, because it is important, there is a widespread degree of concern about it, and we should have such debates. However, I will restrict myself at this point.
We have to bear in mind that we must give this body the powers to be a credible regulator.

Jonathan Djanogly: It is important that, at this stage, the Minister gives the Governments rationale for needing the clause. He just said that there has been only one prosecution in this area in the last eight years. Does he think that there are things that would be prosecuted, but are not being prosecuted, because there is a lack of legislation, or does the commission need to pull its finger out and do more of what it should have been doing? Perhaps he can give the Governments view on what needs to be done.

Michael Wills: We are trying to give the commission new powers so that it can be more effective, as is necessary, in respect of the offences. As the hon. Gentleman has said, powers of entry are provided for under those new measures. The commission should be a credible regulator that can act as a deterrent as much as anything else. I ask the hon. Gentleman, as we discuss these matters further, to bear it in mind that the existence of these powers may act as a deterrent to the kind of behaviour that we do not want to see in the conduct of our elections. That is an important point. It is not that we think that these offences will necessarily be committed and that they will then have to be prosecuted under the relevant powers; we want to stop this behaviour happening. The existence of these powers could be a credible deterrent.
I want to address a lot of the detail, because it relates to the amendment, but first I want to correct a remark I made earlier and put the record straight. The commission has not used its powers of entry; it has only once used its power to request documents.
I hope that Committee members will support clause 2 and that we can discuss its detailed implementation as we go through schedule 1.

Andrew Turner: I was hoping that the Minister would respond to my question.

David Kidney: Will the Minister give way?

Frank Cook: Order. Has the Minister given way to Mr. Turner? He cannot take two interventions at the same time.

Michael Wills: I have given way.

Andrew Turner: I made my remark and sat down.

David Kidney: On the question asked by the hon. Member for Isle of Wight, might the answer relate to the passage of the Criminal Justice Act 2003? Might it be that that does not yet apply in Northern Ireland, which is why there is a distinction between a six-month sentence in Northern Ireland and a 12-month sentence in the rest of the UK? It was a new sentence introduced in the 2003 Act, under which I think half is meant to be served and half not. There is still a maximum of 26 weeks to be spent in a prison cell.

Michael Wills: I am grateful to my hon. Friend, who has summarised the situation perfectly.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Schedule 1

Investigatory powers of Commission: Schedule to be inserted into the 2000 Act

Jonathan Djanogly: I beg to move amendment No. 102, in schedule 1, page 13, line 15, leave out sub-sub-paragraph (1)(d).
The part of the schedule to which the amendment refers deals with powers
in relation to registered parties and others,
and it is the others bit about which we have most concern. The amendment proposes the deletion of the term regulated donee from the list of people or groups to whom the commissions new investigative powers will apply. This part of the schedule is effectively lifted from the PPERA, but with the important change of inserting that category.
The meaning of regulated donee is defined in paragraph 1(7) of schedule 7 to that Act as
a member of a registered party...a members association; or...the holder of a relevant elective office, whether or not he is a member of a registered party.
The amendment comes on the back of our concerns about the extension of the powers to individuals. Given that a person can fall under that provision and not be a member of a registered party, I fear that unless we are careful the effect will be to push people further away from the political process. The hon. Member for Cambridge said earlier that we have to examine politicians, but he will appreciate that what we are discussing here goes much further than politicians and deals with donors.
By broadening the scope of which people the powers of investigation cover, we are in danger of casting the net too wide. People may become fearful, or at least think twice about volunteering their time and energy to assist political parties, if the end result might be that they are investigated by the commission for an action that they have no direct involvement in. My understanding is that it was the Ministry of Justice, rather than the commission, that requested these extensions to the powers. Will the Minister please explain why, and why he believes that they will be required in practice?
In an era of political disfranchisement and unwillingness to get involved in the political process, the last thing that we wish to do is discourage donors. We must be careful to ensure that we do not introduce legislation so broad that it tars everyone with the same brush. We do not need another reason for members of the public to turn their backs on political parties.
The provision is also a disproportionately powerful tool to hand to the commission. How does the Minister see the balance between its enforcement role and the need to safeguard the public from arbitrary state interference working in the paragraph that I mentioned? Can he give hon. Members an idea of the number of people in the UK who would be considered regulated donees and therefore fall within its scope?
What evidence has the commission, or any other body, presented to the Government to support the need for such a broad definition of those who can be investigated? The impact of the change will clearly be to alter the limited scope of the powers and apply them to a hugely larger catchment group. Finally, what example can the Minister give of the powers having been required in practice?

David Howarth: The Electoral Commissions view is that it requires regulatory power over at least some regulated donees. I notice that the provision is about donees rather than donorsthe people receiving the money, not the people giving it.
Regulated donees are defined in the 2000 Act as members of a registered party, a members association or
the holder of a relevant elective office.
The particular group that the Electoral Commission believes it needs regulatory power over is the middle one, the members association. Under the current law, a members association is defined as
any organisation whose membership consists wholly or mainly of members of a registered party, other than
something that is a party itself.
There is a requirement to regulate registered donees and to have access to their papers because otherwise it would be easy for sub-groups within parties to be set up in such a way as to evade regulation. It is perfectly reasonable for the Bill to extend the basic way in which regulation happens to members associations. It was implied in the comments of the Electoral Commission that the Government must answer why it is also necessary to extend the same powers to individual members of parties or individuals who hold elected office.
In fact, those two cases might be different. There might be an argument for the third category: those of us in the House, for example, who are holders of elected office. I shall not refer to particular media items, but it might be possible for donations to parties to take a route to an individual hon. Member for help in his office or such matters. They might otherwise have gone to the party, so perhaps there is a case to answer in such instances. However, I am worried about the extension of the powers to individual party members, which was the strongest point made by the hon. Member for Huntingdon.
Unfortunately, the amendment would go far too far. Under existing law, there is power to require documents from registered donees. The Bill adds powers of entry, which is what is worrying several people. The problem is that, under the existing law, powers to require documents and powers of entry are treated separately. The Bill puts them together.
Unfortunately, the hon. Gentlemans amendment would not only prevent the extension of the law, but take the law away from where it is and reduce the power of the commission over requiring documents. We should not do that. It raises the matter that the commission mentioned, in that the issue should be approached not through entering peoples premises on a warrant or on the say so of the regulator, but by going instead down the route that it proposed of treating the whole thing as a civil matter, whereby the commission goes to the court and asks for an order requiring documents be produced.
It was proposed that if the requirement was not obeyed, at that pointas a remedy for the failure to complythe court could either hold the object of the law in contempt or further authorise a search. There needs to be some regulation; there seems to be over-inclusiveness in the schedules drafting. I ask the Government to look at the matter againnot how the amendment proposes, but more subtly than that.

Michael Wills: Independent review after independent review has recommended that the Electoral Commissions powers should be overhauled. It cannot be right, for example, that when someone has used an agent to give money to a party, the Electoral Commission can require information not from the original secret donor, but only from the agent. The powers that we propose will allow the Electoral Commission to investigate effectively and request information from all those who have it.
There is a case to be made for allowing the investigatory powers to apply to regulated donees. However, of course I am aware of the concerns that have been expressed here today, and elsewhere, by hon. Members about the powers and their application to regulated donees. I am also aware that the Electoral Commission has perhaps been reconsidering its positionwe have had some communications, and I intend to discuss the matter further with it and to reconsider carefully whether the extension provided by the Bill is defensible. Given that the commission has yet to use the power, the case for extending it may still have to be proven.
Colleagues and Members of Parliament have expressed concerns. We need to seek the advice of the regulatory body to see what it feels on the subject. When we have had those further consultations with the Electoral Commission, I shall respond to this point. However, I take up the invitation of the hon. Member for Cambridge to reconsider those points of view. As we are engaged in reconsidering the provision, I hope that the hon. Member for Huntingdon will withdraw his amendment.

Jonathan Djanogly: This has been a helpful debate, and we have moved the argument on this afternoon. I accept some of the critique of the hon. Member for Cambridge on the drafting of the amendment, but the point is one that we certainly intend to think on furtherhe does too. I am pleased that the Minister has said that he will consult with the Electoral Commission and think further on the issue. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jonathan Djanogly: I beg to move amendment No. 86, in schedule 1, page 13, line 23, after may, insert only.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 87, in schedule 1, page 13, line 24, after been, insert
, within the 5 years immediately prior to the date of the notice,.
No. 88, in schedule 1, page 13, line 26, at end insert
and whom the Commission have reasonable suspicion to believe has committed an offence under this Act..
No. 89, in schedule 1, page 13, line 26, at end insert
(2A) A disclosure notice must be served on the individual specified in paragraph (2) by hand by a person specifically authorised by the Commission to effect the service of such notices..
No. 90, in schedule 1, page 13, line 30, leave out any and insert information or.
No. 91, in schedule 1, page 13, line 34, leave out from of to end and insert
investigating an offence under this Act..
No. 92, in schedule 1, page 14, line 2, at end insert
(3A) A person served with a disclosure notice under paragraph (2) may appeal to the Commission in writing within 14 days of receipt of service under paragraph (2A)..
No. 93, in schedule 1, page 14, line 4, leave out from within to end and insert
28 days of receipt of that disclosure notice..

Jonathan Djanogly: We shall now deal with a batch of several amendments. Given the accusation about the commissions passiveness in exercising its regulatory role, the amendments would ensure that there was no ambiguity or discretionary element coming out of the schedule, or would at least reduce them.
Amendment No. 86, by removing any suggestion of discretion, would make it clear to the commission and to the individuals or organisations covered by the schedule what must be done to comply with it. The addition of only would ensure that there was no ambiguity around when a disclosure notice may be issued by the commission. That would help to clarify the position for the commission and those subject to the provision.
Given the complexity of the schedule, certainty must be our objective, thereby reducing the possibility of the provisions being breached by administrative oversight or simple ignorance of the effect of non-compliance.
Amendment No. 87 would include a specified time limit for the period in which an officer of a party may be considered within the remit of the Bill under clause 2. It is an important issue. We do not wish to see individuals subject to disclosure notices for some long-forgotten donation or action. It is unreasonable and impractical to extend the power to cover actions taken or documents received at any point in history when we are talking about people who mainly are volunteer workers.
On a practical level, the keeping of comprehensive records for more than five years will be difficult to enforce and is unlikely to be achieved, given the limited space that party officials often find themselves working in. I am sure that a straw poll of hon. Members would find few with full and comprehensive records for matters that occurred before 2002 that were also easily accessible.
We must be mindful of the financial and administrative burdens that we place on those individuals and organisations, not to mention the likelihood that many of the individuals concerned may have left such offices, or even the country. The time limit of five years attempts to achieve more than just nodding acquaintance with the normal term of Government. I certainly hope, too, that where the commission is planning on issuing such disclosure notices, it does so expediently and well within the five-year limit proposed. If it does not, that will be the fault of the commission, rather than the individual.
In amendment No. 88, the need for reasonable suspicion by the commission is a theme that will be seen in a number of my amendments during the course of our debates on the Bill. Here I suggest its insertion into paragraph 1(2) of schedule 1. We are dealing, as always when we legislate, with the need to balance competing interests. On the one hand, the commission must be given effective and workable powers of investigation that it can utilise in its role as regulator and, on the other, party officials and individuals must be allowed to go about their usual business without fear of being arbitrarily subject to possible investigative whims of the commission.
We have a legal system in the UK that operates on the principle of innocent until proven guilty. The amendment would maintain that principle and ensure that the commission operates within the rule of the law. The concept of reasonable suspicion is seen throughout the criminal and civil sanction regimes laid down by this House over the years. It is a vital tool in ensuring that the agents of the state do not have arbitrary powers to encroach on the lives and activities of honest groups or individuals. It is a reminder to agencies that they are not above the law, while providing an avenue for redress for an individual who feels that they are subject to unjustified and arbitrary state persecution.
The courts of this country are familiar with the concept, so too are the various regulatory bodies that operate to ensure compliance with the law in the UK. I have not proposed the need for belief beyond reasonable doubt as I believe that that may unduly hinder the effectiveness of the commission. The test of reasonableness, however, would not only safeguard the individual, but would focus the mind of the commission when investigating alleged offences under the Bill. Will the Minister tell hon. Members why such a safeguard was not originally included in the Bill?
Amendment No. 89 relates to sub-paragraph 1(2), which as it stands, is silent on the method of service for disclosure notices. That could have difficult practical implications for the effective workings of this new system. Are we to accept that by simply posting a notice the commission can be considered to have properly served such a notice? What of the situation where the individual or group has moved address? I believe that the service of such notices by hand is both the fairest and most proper way of handling this current deficiency. I have neither seen nor heard from the Minister any figures that would suggest that this would place a disproportionately arduous burden on the commission, nor do I believe it is unreasonable for the commission to serve disclosure notices in such a way. How many does the Minister consider will be handed out per year? Presumably, very few indeed.
If we are to grant the commission the power to enter premises and remove documents, thus interrupting the lives of individuals, it is a matter of due process, not to mention courtesy, that those individuals are first, made aware of the investigation and secondly, have proper notice of such an investigation and a disclosure notice, so that they may be given the fullest amount of time to comply and avoid further penalty.
I noted that I did not believe that service by hand would place an undue burden on the commission. To support this I would like to draw hon. Members attention to comments made by the Secretary of State for Justice in the first evidence session before this Committee. In response to questions I put to him he said:
The answer is that, as at 16 June 2008, 29 people had been prosecuted under the 2002 Act, resulting in 23 convictions.[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 18, Q38.]
By my calculations, that is less than four prosecutions on average for each of the years that the commission has been operating. Unless the Minister has evidence to suggest that many more disclosure notices will be issued by the commission in the years following the enactment of this Bill, I believe that service by hand, when balanced against the severity of the penalties for none compliance, is fair. Amendment No. 90 is consequential.
Amendment No. 91, dealing with paragraph 1(3), would ring fence the powers of the commission and concentrate them only on investigations of offences under the Bill. The amendment would remove the ability for the commission to use this power in relation to any of its functions, which is an unnecessary and unjustified extension. The commissions functions under PPERA have been the focus of many reviews by a multitude of different organisations. Indeed, we are here today because the commissions previous functions were deemed too wide and therefore were hampering its ability to effectively undertake its role as a regulator. Part I of PPERA contains 21 sections and two schedules that expressly set out the functions of the commission.
Are we to believe that the Government intend these powers to extend to the commissions multiple roles? Or rather are they to be used only in relation to their investigation of offences under the Bill? I hope very much, for the sake of all of those who act in some capacity that brings them into contact with political penalties or donations, that it is the former. Otherwise, the balance will have been tipped unnecessarily in favour of the commission. We would hand it powers that it not only does not need, but would not use.
I hope that the Government see that the breadth of the sub-paragraph as it currently stands is very wide. As an aside, would the Minister please confirm that the existing powers of investigation in PPERA will be terminated by the Bill so that there is no duplication of powers, which couldinadvertently, I am surebe used to give the commission a second bite of the cherry?
Amendment No. 92 deals with paragraph 1(3). I would like to reiterate points made by Sir Hayden Phillips. In the first evidence session before this Committee, he said that he hoped we would be able to find amendments that would make everyone comfortable that the powers are not excessive. I fear that without a right of appeal, which I propose in the amendment, we are handing the commission a mandate to serve disclosure notices on individuals and groups associated to political parties in the manner of a fishing exercise. Without a right to appeal, there is nothing to prevent the commission from simply trawling the records of such people in the hope of finding an inconsistency on which it could build an investigation.
I am not suggesting that that would take place with the current commission, which has been co-operative throughout the development of the Bill, including with the official Opposition, but we are legislating for future generations that will not have been privy to the many discussions and debates that have surrounded it. As such, we must ensure that we minimise opportunity or flexibility that would leave the powers open to abuse in years to come. By having a right of appeal as set out in the amendment, we would, in effect, have a self-policing safeguard that would require no additional cost to be borne by the commission. Furthermore, given the 14-day time frame, it would not produce unnecessary delay to investigations.
Amendment No. 93 deals with paragraph 1(4). It returns to my concern that many aspects of the Bill are so broad that they could be rendered almost unworkable in practice. Compliance in a reasonable time is too subjective a concept. One mans reasonable may be anothers unnecessarily harsh or overly lenient. Elements of subjectivity in time-keeping should not have a place in a Bill such as this. Clarity and certainty are needed. The amendment would work to the ultimate benefit of all parties involved.
The 28 days recommended in our amendment should be sufficient for those served with a disclosure notice to locate the documents and information specified in it. Given the penalties that may be faced for non-compliance, every effort should be made to ensure that individuals do not fall foul of them because of unforeseen delays. Illness, temporary IT problems, personnel on holiday or any number of other eventualities may prevent documents or information from being submitted to the commission.
I would caution against over-zealous application of the limit by the commission. Co-operation is the easiest and simplest way to resolve most causes of a breach of the provisions of the Act, and the commission should not be too quick to take punitive action. I hope that the Government will see the value in what I have said, and I welcome the Ministers comments.

David Howarth: I have a great deal of sympathy with what the hon. Member for Huntingdon said towards the end of his remarks, especially about amendment No. 93, which would add to the clarity of the schedule. I hope that the Minister has some explanation as to why the system at present operates on the basis simply of reasonable time.
I also have some sympathy with amendment No. 92, which would insert an appeal mechanism. That is necessary if we are not to go down the route that the commission suggested of having it go to the court in the first place to ask for enforcement of a disclosure notice.
However, I would like to spend a minute or two on amendments Nos. 88 to 91, with which I am less comfortable. They tend to conflate two different functions of the commission. It may well be the hon. Gentlemans argument that the commission should have only one function, and that he is trying to get rid of the other one.
The two functions are inspection, and the investigation of offences. Of course, a body that has an inspection power will, ultimately, need some criminal law sanction, or some sanction, to enforce it. Nevertheless, the main point is that it is not the criminal law, or taking people to court to prosecute them for non-compliance, but the inspection itself that gets the compliance. The idea is that transparency, openness, information and audit all add together to produce compliance with the lawwhereas investigatory powers of the second sort are more like what the police or prosecution authorities do.
In amendment Nos. 88 to 91, the hon. Gentleman is trying to remove the difference between those two. He is treating the Electoral Commission purely as a prosecution authorityas if it were the Serious Fraud Office or the DPP. I do not think that that is appropriate. A regulatory body needs tools other than prosecution to get compliance. The tool available to itinspection backed by sanctionsis an appropriate and better tool for what it has to do. I fear that the hon. Gentlemans approach will have the opposite effect to the one he wants: it will make the commission more like a hard criminal prosecutor and less like a regulator. His approach will encourage the kind of attitude that those who read news stories about the commissions activities have: that those involved in politics are the kind of people who commit criminal offences, as opposed to merely being the kind of people who need to be audited.

Michael Wills: The hon. Members for Huntingdon and for Cambridge have made useful contributions; I am grateful to them. Many detailed issues were raised and I shall run through the amendments more or less in orderalthough I am afraid I will have to resist all of them.
Amendment No. 86 is unnecessary. It seeks to limit the extent of the commissions investigatory powers under paragraph 1(2) of schedule 1 to the Bill. The effect of the amendment would be that the commission would only be able to issue a disclosure notice either to a treasurer or an officer of an organisation to which paragraph 1 applies, or to an individual to which paragraph 1 appliesin other words, regulated individuals. That is the effect of paragraph 1(2) anyway, so the amendment is unnecessary. The limitation in paragraph in 1(2) will have no effect on the use of paragraph 2, which is a separate power to which separate limitations set out in the Bill apply. The commission needs a cross-party consensus to become a more effective regulator. If it is going to do that, it needs more appropriate investigatory powers and the clause as drafted does that without straying too far. For that reason, the amendment is unnecessary and I hope that the hon. Gentleman will feel able to withdraw it.
I am afraid that I will also have to resist amendment No. 87 because it seeks to place a time limit on the commissions powers to issue a disclosure notice under paragraph 1(2). The effect of amendment No. 87 would be that the commission would only be able to issue a disclosure notice to a person who has been a treasurer or another officer of an organisation to which paragraph 1 applies in the past five years. Currently, the commission can issue a disclosure notice to any person who is, or who has been the treasurer or another registered officer to which this paragraph applies, or an individual to which this paragraph applies. There is no time limit in relation to that.
Although it seems unlikely that in most cases, the commission will need to go back in time more than five years, we cannot entirely rule out that possibility. Given that the commission will have to exercise its powers reasonably, which is in line with the general principles of public law, before making a request under paragraph 1, we do not think that such a constraint needs to be put in the Bill. I therefore hope that the hon. Gentleman does not press the amendment.
I shall deal with amendment Nos. 88 and 91 together and at some length because they raise important questions that I know are of general concern to the Committee and hon. Members more widely. Both amendments seek to limit the extent of the commissions investigatory powers. Although the amendments are clearly well intentionedand we are grateful to the hon. Gentleman for the spirit in which he is proposing themthey, nevertheless, suggest a misunderstanding about the different purposes of the powers set out under paragraph 1 and those set out under paragraphs 2 and 3. If there is such a misunderstanding, I hope that it will be helpful to the Committee if I set out the different purposes of those powers and the interplay between them. The hon. Member for Cambridge may have been alluding to that in his remarks.
Paragraph 1 of the new schedule restates, with some changes, powers that the commission has in relation to registered parties and others that are contained in section 146 of the 2000 Act. Under section 146(3) of that Act, the commission has powers to enter premises and take copies of information relating to income and expenditure from a registered political party, a recognised third party and a permitted participant in a referendum. That power under the Act can be exercised by the commission for the purposes of carrying out its function. At present, the power to enter premises does not apply to election agents or candidates in an electionexcept candidates at a local election in Scotland.
However, the commission currently has powers under section 146(1) to require the disclosure of documents relating to income and expenditure from election agents or candidates. The Bill repeats the existing power to enter in paragraph 1(5) of proposed schedule 19A, which is to be inserted into the 2000 Act by schedule 1 to the Bill. It also extends it to candidatesother than candidates in Scottish local government electionselection agents, regulated donees, including MPs, and regulated participants. The result of that is that the original power in the 2000 Act for the commission to enter premises for the purpose of carrying out its functions will now apply to election agents and candidates, alongside the other individuals and organisations listed in paragraph 1(1) of schedule 19A.
Paragraph 2 of the schedule seeks to provide new powers for the commission when it undertakes an investigation into a suspected breach of the 2000 Act. To that end, the Bill provides the commission with new powers to request information, to put questions and to apply for a warrant to enable it to enter premises when carrying out an investigation into a suspected offence or other contravention of the 2000 Act. Those powers can be applied to election agents and candidates who have such information in the same way that they may apply to anyone else.
Howeverthis is crucial to addressing the concerns of many hon. Members in Committee and in the House more generallywe have also introduced a number of important safeguards for the use of such new powers. In relation to the entry of premises under this new power, the commission will need to apply for a warrant under paragraph 3 of proposed schedule 19A. There is no automatic right of entry. For a warrant to be issued, the commission must demonstrate on oath to a justice of the peace that it has reasonable grounds for believing that an offence has been committedor that another contravention of the 2000 Act has occurred. It must also establish that documents are on the premises that were withheld following an earlier request or that are otherwise relevant to the investigation. When entering the premises, commissioners must be accompanied at all times by a constable.
The amendments seek to limit the extent of the commissions investigatory powers under paragraph 1(2) and (3) of the schedule. The effect of amendment No. 88 would be that the commission would be able to issue a disclosure notice only to a treasurer or officer of an organisation to which paragraph 1 applies, or an individual to which paragraph 1 applies, such as regulated individuals.
That would impact on the powers of the commission in paragraph 2 of the schedule to require any person, including a regulated individual listed in paragraph 1, to produce documents or information that it reasonably requires to investigate suspected offences or contraventions. That would seriously hamper the commissions ability to investigate suspected breaches or contraventions in conjunction with relevant prosecuting authorities.
The effect of amendment No. 91 would be to restrict circumstances in which the commission can issue a disclosure notice so that it could do so only when it has formed a reasonable suspicion that an offence has been committed under the Act. Currently, the commission can issue a disclosure notice seeking information or documents relating to the income or expenditure of the organisation or individual in question that it reasonably requires for the purposes of carrying out its functions.
The powers set out in paragraph 1 are supervisory powers and we believe that the commission should be able to use those powers to determine whether regulated individuals are complying with regulatory requirements. To restrict that power to circumstances in which the commission has formed a suspicion that an offence has been committedas is required under paragraph 2would unnecessarily restrict the commissions ability to carry out its supervisory and monitoring functions. I, therefore, hope that the hon. Members will not press the amendment.
Unfortunately, I shall have to resist amendment No. 89, too. It would require a disclosure notice served under paragraph 1(2) of proposed schedule 19A to the 2000 Act to be served by hand by a person specifically authorised by the commission to do so. I understand the points made by the hon. Gentleman, but we cannot give him any information about how often the power will be used because we do not know that. However, it is likely that the relatively small number of occasions it was used between 2000 and 2008 will increase because, at that point, the commission did not have investigatory powers. How burdensome it would be to the commission is therefore impossible to say, but the case for resisting the amendment does not rest only on the fact that it would be burdensome.
Serving notices by hand is unnecessary. There are other ways in which to serve notices, which would remove the risk of such action being a burden on the commission. Moreover, it is important that the hon. Gentleman considers that serving the documents by hand might also create an opportunity to allow those to whom the commission intends to give a disclosure notice to obstruct the receipt of that notice in a way, for example, that delivery by recorded delivery or registered post does not. Such methods of delivery do not give the same opportunities. In light of my explanation, I hope that the hon. Gentleman will not press the amendment.
Sadly, I shall have to resist amendment No. 90 as well. It would allow a disclosure notice issued by the commission to require the production of documents or information rather than any documents, as the Bill currently provides. The amendments effect is already achieved by paragraph 1(3)(b) of proposed schedule 19A to the 2000 Act. It provides for a disclosure notice to require the person to whom it is given to provide the commission with information. The amendment is unnecessary as it would not add to the effect of the Bill. I therefore hope again that the hon. Gentleman will not press it.
I resist amendment No. 92. It would allow a person served with a disclosure notice to appeal to the commission in writing within 14 days of receipt of service under paragraph (2A), which the amendment would insert. A disclosure notice is essentially a request for information requiring the person to whom it is given to produce for inspection by the commission any documents that relate to income and expenditure of regulated individuals and organisations, and that are reasonably required by the commission for the purposes of carrying out its functions. The commission is best placed to decide whether it is necessary to issue such a request, and it would slow down the progress of investigation considerably if each notice were accompanied by a right of appeal.
Because a disclosure notice is not a sanction, we do not believe than an appeals process is necessary. It would be open to individuals who feel that they have a reasonable excuse not to comply with a disclosure notice because, for example, they do not hold any of the requested documents, to provide the commission with an explanation of why that is the case. In subsequent proceedings in respect of an offence for refusing to comply, any such explanation would have to be taken into account by the commission or, indeed, by a court. I hope that, in light of that reassurance, the hon. Gentleman will not press that amendment, too.
I come now to amendment No. 92, which the Committee may be relieved to hear is the final amendment in this group. It requires those served with a disclosure notice by the commission to comply within 28 days. Under the Bill, they would currently be required to comply within such reasonable time as is specified under the notice. I agree that those who receive a disclosure notice need to be given time to comply with it, and that they need to know the length of the period. That is why the Bill provides for a disclosure notice to specify a reasonable time within which the person served with the notice must comply. To that extent, there is certainty.
There has been some discussion about whether reasonable is sufficiently certain. We would argue that the flexibility that the term gives is appropriate, because the commission should have discretion to vary the period for compliance depending on the nature of the requests, which may be various. We believe this more flexible formulation is appropriate as, in some instances, the commission will need to allow a longer periodfor example, for the production or provision of documents in some circumstances, such as if there is a large number of them. Equally, a request might be time-critical, particularly if there was concern that the success of an investigation might be under threat if not obtained speedily.
The term reasonable is in common usage and, for example, the courts have not had much difficulty in interpreting it. In the light of that explanation, I hope that the hon. Gentleman will not press that amendment as well.

Jonathan Djanogly: As Members will have noticed, this batch of amendments has taken quite a long time to run through. The amendments are technical by nature, but we are covering new ground here and making new laws. This is the first sitting of several in this House and several in the other place, and it is very helpful that the Minister has given full answers and fully considered the amendments, because that will make both stages on the Bill more productive as a result. To the extent that there was a lot of information, I shall be going away and having a careful look at what he said today.

Michael Wills: Because the hon. Gentleman will so generously consider what I said, I want to add one answer. He raised an important question about giving the commission a second bite at the cherry, which I regret that I inadvertently failed to address. The Bill would not allow that, and nor would it allow more than one sanction to be applied for the same offence. I hope that gives him some reassurance.

Jonathan Djanogly: That is a very helpful clarification. In relation to his latter point, I shall be covering that again through one of my other amendments, so I must revisit that.
I took the point of the hon. Member for Cambridge that some of the amendments could have the implication of making the clause more criminal in nature, therefore making it less adaptable and user-friendly as a proportionate and varied approach from the commission. I shall look at our amendments again in that light, because that is an important point. Of course, the first line for the commission would be to approach people without any criminal or civil penalties whatsoeverjust approaching people for information, which is probably the best way to get it.
On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jonathan Djanogly: I beg to move amendment No. 94, in page 14, line 5, leave out sub-paragraph (5).

Frank Cook: With this it will be convenient to discuss the following: Amendment No. 95, in page 14, line 6, leave out their functions and insert
an investigation where they have reasonable suspicion that an offence under this Act involving in excess of £10,000 has been committed..
Amendment No. 96, in page 14, line 7, after enter, insert
, only with authorisation by a warrant issued under paragraph 3 of this Schedule and when accompanied by a police constable,.
Government amendment No. 122.
Amendment No. 97, in page 14, line 12, at end insert
(6) For the purposes of this Schedule a person authorised by the Commission is a person who has express written authority of the Commission to act on its behalf and is one of the following
(a) an employee of managerial level of the Electoral Commission;
(b) a member of a police force in England and Wales;
(c) a constable of a police force in Scotland; or
(d) a member of the Police Service for Northern Ireland..
Amendment No. 98, in page 14, line 12, at end insert
(6) A person authorised by the Commission (who is not a police constable) may not use any force to enter premises, but a police constable may use such reasonable force only as is necessary to gain entrance to the premises..
Government amendment No. 123.

Jonathan Djanogly: Amendment No. 94 is moved on a probing basis, to delete paragraph 1(5) of schedule 1, which empowers the commission to enter premises to carry out what is stated as its function under PPERA. Given the vagueness of the provision, we are keen for the Minister to justify fully the need for the powers. From Government amendment No. 122 and their consecutive amendment, it would seem as if they will make some concessions in this area and we look forward to hearing the Minister.
However, we have significant concerns about the proposals for powers of entry for the Electoral Commission. The commission already has powers of entry into political parties offices, under PPERA. Paragraph 3 of schedule 1 extends that to provide powers of entry into the premises of anyone who has donated to a political party or regulated donee. That has the potential to erode the willingness of law-abiding citizens to donate to political parties. It would take only one heavy-handed use of the powers in someones home or office for other legitimate donors to take fright at the prospect of giving money to political parties. Last October, in a speech at the university of Westminster, the Prime Minister pledged to curtail powers of entry with a new liberty test. I gave details of that in my earlier remarks.
As part of Lord Wests review into powers of entry, the Home Office estimated the powers of entry that are in force. I have voiced my concerns on that issue in a previous debate. A study of state powers of entry by the Centre for Policy Studies, last year, warned:
In many cases, discretion as to what is considered as reasonable behaviour in exercising an entry power is left to the judgment of those wielding the entry power...Many powers are drafted so broadly that the citizen has little or no protection if officials behave officiously or vindictively. Some carry draconian penalties for obstruction, including heavy fines and prison sentences of up to two years.
It is with that in mind that I proposed my amendments in an attempt to insert some statutory safeguards into the schedule.
If amendment No. 94 fails and paragraph 1(5) remains in the schedule, it would need to be amended. Amendment No. 95 would insert into paragraph 1(5) a higher threshold test for the commission to satisfy before it could enter premises. A high value is necessary to prevent a fear among small party donors that a bequest in a will, or a cheque for a friend who is running as a candidate in an election, might result in their home or office being invaded by the commission. The amendment would focus the commissions mind on the abuses and offences that are the most flagrant contraventions not only of the Bill, but of the spirit of transparent party funding. This is a question of balance, but at the moment there is no balance.
Amendment No. 95 would operate a secondary safeguard. Once the commission had satisfied what I will call the threshold value test of £10,000, it would have to prove that it had reasonable grounds for believing that an offence had occurred. It would then have to formulate its arguments and investigations into a cohesive submission to the justice of the peace when applying for a warrant. The idea of entry powers being given to investigate donations of a few pounds is bizarre, if not excessive.
Amendment No. 96 concerns the point of entry and goes together with the safeguards envisaged in amendment No. 95. It provides that entry would have to be authorised by a warrant, and that a police constable would have to be present to ensure that the commission acted within the law. The constable would also provide vital assistance to those acting on behalf of the commission in entering premises. We have no wish to create a cadre of have-a-go heroes under the auspices of the commission. We see the use of powers of entry as the last option available to the commission. Their use should be the nuclear option, to be used when all attempts to elicit the required information, or to co-operate with the individual or group suspected of an offence, have failed. Does the Minister share that view, or does he think that they will be used pre-emptively?
In such circumstances, the owner of the premises might not co-operate. Amendment No. 98 would make provision for the use of reasonable force. In drafting those powers, I have attempted to safeguard the commission, the property and its owner, so that only the accompanying police constable would be able to use such force. There is no need for the commission directly to have such powers. That is the polices role, and I hesitate to provide anyone else with such powers. Given the unlikelihood of that last resort being used often, I see no practical difficulty in requiring the commission to act in that fashion. Does the Minister agree that such powers of entry would, and should, be used only in a few exceptional cases?
I reiterate that we have only just received Government amendments Nos. 122 and 123, so I have not given them a huge amount of thought. I certainly have not had the chance to consult on them. We think that they pick up on the comments of Peter Wardle, the chief executive of the commission, in our evidence session of Thursday 6 November. When discussing the commissions current monitoring and inspection powers, he noted that they were typically used to run audits on the documents and records of bodies that receive policy development grants. That came about from a need to assure Parliament that such funds were being spent in an appropriate manner and in accordance with the terms of the grant. He said:
That is inspection and audit; we do it already and we think that the current powers are adequate for that.
The Government seem to have taken to heart what he went on to say, and that is to be welcomed in light of the Bills other deficiencies and the tight time frame in which it is being rushed through. Peter Wardles succinct comments give some understanding of the Governments rationale behind the amendments. He said:
We feel that the current powers are adequate to do the job we need to do regarding inspection. One can see why, for completeness, the powers have been extended, but we are not convinced that we need those powers. If Parliament were to have concerns about that particular aspect, we would be relaxed provided that the current powers are preserved so that we can continue our inspection and monitoring role.[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 43, Q104.]
That is what the Government seem to be attempting with this amendment; they have limited the right of entry under paragraph 1(5) to only the commissions role as an auditor/inspector of financial documents. We welcome this moment of clarity from the Government and support their main principles and rationale in this regard. Indeed, this amendment echoes the sentiment of many of our own amendments relating to the schedule.
In many ways, amendment No. 97 can be read in line with amendments Nos. 95, 96 and 98. The schedule makes much reference to those people authorised by the Commission. In fact, almost all the powers granted to the commission under the schedule are also available to those individuals, yet we can find no reference in the Bill to a definition of who they are. Perhaps the Minister can assist me with this. My amendment No. 97 to paragraph 1(5) proposes solving that problem by specifying who may be authorised by the commission to exercise these powers. I have deliberately limited those powers to high-level employees of the commission, at least, and left it marginal in respect of who else should be included and why. Given that these powers of entry are unlikely to be used in all but the most extreme cases, it is justifiable to expect the commission to send an individual from management. Doing so would ensure that both the commission and the owner of the property take such a person, and their on-the-ground assessment, seriously.
We do not wish the commission to send people, such as its cleaning staff, for instance, to raid premises. Furthermore, given the seriousness of the exercise of this power, the ability simply to authorise anyone is not only worrying but would call into question the commissions integrity.

David Howarth: The debate on these amendments comes back to the distinction, which I was trying to make in the previous debate, between the commissions powers of inspection and its powers in respect of the investigation of criminal offences. The Government are now offering, in amendment No. 123, greater clarity in distinguishing between the two, making it clear that the powers laid out in schedule 1(1) may not be used as investigative powers when investigating a criminal offence. That clearly separates the two. It therefore follows that the amendments tabled by the hon. Member for Huntingdon, which talk about the sum at issueamendment No. 95, for exampleare no longer relevant, because the inspection power is not to do with amounts of money at stake in respect of an offence, but with ensuring that people are complying with more general requirements. Nevertheless, his other points still apply.
If the Government still want there to be a power of entry for the purpose of inspection, they have to think through precisely how that is going to work. What the hon. Gentleman said about ensuring that constables are there, that the powers are clear and that officials of a civil regulator are not resisted with force is still pertinent. The Government need to think that through.
More generally, the Government need to think through what the purpose is of having a power of entry for an inspector. Precisely why do we need inspectors to have powers of entry and under what circumstances, when they are not investigating offences? This brings us back to the point that the hon. Gentleman made about the Electoral Commissions not being entirely enthusiastic about having these powers and not seeing a great deal of benefit in them. If it is to have such powers, they need to be in more of a civil than a criminal context. If there were a clear link in the system between the failure to disclose a document following a reasonable request by the commission, and a power of entry at some point after that because of failure to comply, that could be justified. However, at the moment I see no link between the process for requesting disclosure and the power of entry, which seems to appear out of nowhere. I ask the Government to reconsider sub-paragraph (5). As the hon. Gentleman said, amendment No. 94 is a probing amendment; nevertheless, this aspect of the Bill needs to be reconsidered.

Michael Wills: We welcome these probing amendments. We will have to resist them all, but the fact that we have tabled Government amendments on this issue shows that we are conscious of the need to get it right and to be flexible in doing so. We are not prepared to render the Electoral Commission ineffective, however, particularly as we are expanding and intensifying its role as a regulator. We must ensure that in doing that, we give it effective powers.
We are prepared to respond to concerns. The hon. Member for Huntingdon asked me directly whether we can expect the powers to be used rarely, and the answer is yes. I want to put it on the record that the commission should use them with great care. However, is it important that they exist, not least as a backstop and a deterrent to behaviour that none of us wants to take place.
I shall go through the amendments in order. Amendment No. 94 would delete paragraph 1(5) of schedule 1, which essentially restates the commissions existing powers in relation to supervised individuals. Those powers allow it to enter premises occupied by specified individuals to inspect documents relating to their income and expenditure, at any reasonable time, for the purpose of carrying out its functions.
Amendments Nos. 95 and 96 would amend the same powers of entry to make them applicable only in connection with an investigation involving more than £10,000, and exercisable only with a warrant and accompanied by a constable. The material difference between that power and the version in the 2000 Act is the range of individuals to whom it may apply. Most notably, the Bill extends the commissions powers to cover regulated doneesMembers of the House and of political parties, as well as candidates, their agents and permitted participants at referendums.
That extension is being made to ensure that the commission can routinely access all the information that it needs to exercise its functions. The key thrust of the Committee on Standards in Public Lifes 2007 report, which was instrumental in the genesis of the Bill, was that the commission is currently not equipped to fulfil its role. More recent events have also brought that to the fore. It has a general function of monitoring compliance with the rules governing elections and politics in this country, and we must not lose sight of the importance of that role. Public confidence in the probity of our political system rests in large part on the faith that scrutiny can command. It is vital that the commission be able to access all the information that it needs to monitor compliance with the rules.
Having said that, real concerns have been expressed in Committee today and on Second Reading about the extent of that power and the intention behind it. We have already indicated our intention to move on the issue, and I am willing to listen further. However, we need to remember that if the commission did not have such a power of entry, it would be entirely lawful to refuse to admit the commission if it sought to inspect party records on party premises. There would be no negative consequence of that for the party concerned, and such a backward step would be seriously detrimental to the transparency and scrutiny of our political system. To remove the power at the very point when we are refocusing the commission on its monitoring role would send out the wrong message and deprive it of a potentially important tool in performing that role.
The amendments would constrain the commissions existing powers of entry and make them almost identical to the powers in paragraph 3 of the schedule that apply in relation to suspected offences. We believe that that would be a similarly backward step. As I explained earlier, it is vital that the commission be able to access the information that it needs to supervise those whom it regulates. Any credible regulator must have those powers, and it does. It is similarly vital that, where the commission has reason to believe that an offence or other breach of the rules has been committed, it can look into it thoroughly and effectively. Without that power of entry, it would be wholly reliant on law enforcement agencies for investigations, and that would make it impotent in the face of apparent wrongdoing. Merging the two powers and constraining both by the need for a reasonable belief of an offence, together with the need for a warrant and the accompaniment of a constable, would not work in practice. The two powers are for different purposes and, rightly, they are differently constituted.
Amendment No. 97 would require a person entering premises under the power in paragraph 1 to be either a manager at the Electoral Commission or a police officer.

Andrew Turner: The Minister appears to distinguish in this matter between everything and nothing. This is not a debate about everything and nothing. In amendment No. 97, it is about £10,000. However, it need not be that amountit could be £5,000 or £500. I am trying to obtain some kind of explanation that takes account of different scales rather than just yes and no.

Michael Wills: I am sorry if I have not made this clear. I hoped that I was saying that we realise peoples concerns. We have indicated that we are prepared to listen to them, and I am happy to go on meeting concerns as best we can. However, I am not prepared to remove the powers. It is not everything or nothing. We are prepared to be flexible about how those powers are exercised. We have already proposed certain safeguards, we are proposing more and we are happy to listen to other suggestions. Nevertheless, we must ensure that the commission remains an effective regulator. That is all I am saying. If the hon. Gentleman thinks that we should be flexible about how we make the regulation effective, I am happy to enter into a dialogue about that. We have already done so, and I will continue doing so. I hope that that reassures the hon. Gentleman.

Andrew Turner: I welcome the Ministers response. The problem is that somebody can be done for having 7s 6d in their pocket at home. I am trying to understand what would require the commissioners to investigate and make a distinction between those with 7s 6d in their pocket and those with £15,000. If there is no difference, the commissioner must get on with it. He has the law. The law, it seems to me, is an open and shut case. The Minister is saying that every opportunity will be given to the commissioners to make the decisions. That is what is wrong.

Michael Wills: I am not altogether following the hon. Gentleman. Perhaps he could refer to the amendment that he is talking about. I am sorry if I am missing his point; perhaps he could be a little more specific.

Andrew Turner: I am talking about amendment No. 95. When someone says, You have 7s 6d in your pocket, the same powers are being used as in the case of a man who has £10,000 in his pocket. What is making that person exercise the powers if it is not the scale of the things in the pocket?

Michael Wills: I am still not altogether clear about it, but in so far as the hon. Gentleman mentions 7s 6d and all the rest, that will be a question of judgment for the commission. It is a matter of proportionality. I am not sure that I entirely follow his concerns, but if he would like to convey them to me afterwards, I would be happy to engage with him and try to reassure him.
Throughout, we have tried to strike a balance. As I said at the beginning of my remarks on this, we have to strike a balance between not putting disproportionate burdens on people who are often volunteers and taking a proportionate response to the offences being committed. At the same time, we must be cognisant of the point raised by the hon. Member for Cambridge at the start of his opening remarks that, as politicians, we cannot exclude ourselves from the kind of regulatory constraints to which people in other public bodies are rightly subject. It is a question of proportion and balance. We think that we are trying to strike the right balance in the application of these powers.
As I was saying, amendment No. 97 requires a person who enters premises under the paragraph 1 power to either be a manager at the Electoral Commission or a police officer. Authorisation of the use of this power by a manger at the commission would, in practice, be embedded in the commissions operation of the power. It is set out in statute that an entry could only be carried out by a senior member of staff in that context and could be restrictive and inflexible. In carrying out its duties, the commission must effectively have the ability to delegate entry and inspection duties to staff below such a senior level.
There is not currently a definition of manager in the statute. It might be difficult to interpret what grade of employee would be capable of using the power. Structures within the Electoral Commission might change over time and we think that that is an unnecessary inflexibility. The commission has no intention of using this power lightly. It is well aware that entering a premises is a significant step. We believe that it will operate the power responsibly, as it has done with the existing power to date. It is worth reminding the Committee again that the commission has had these powers.

Jonathan Djanogly: It might be helpful if the Minister could describe what he thinks an entry situation would involvewhat would actually happen?

Michael Wills: With respect, I will not pre-empt the judgment of the Electoral Commission on that. However, I shall say one other thing. I know that the Conservative party wants to abolish the Human Rights Act 1998, but if Conservative Members were to listen to my words, they may have cause to revisit it. Article 8 of that Act gives valuable protections in precisely these circumstances. That is why it is a good bit of legislation and why we hope, in time, the Conservative party will come to realise its value.

James Duddridge: I thought the Minister was saying that politicians ought to be treated equally in these amendments and the clause more widely. Is it not the case that the Electoral Commission would not be able to enter the House of Commons and raid an MPs office and that they would not be able to go into the House of Lords, unless the Member was perhaps based in 4 Millbank, which is not formally part of the parliamentary estate? If that were the case, their office could be raided. Is that not an inconsistency?

Michael Wills: My point related to that made by the hon. Member for Cambridge: we should not seek to remove ourselves from the general constraints to which other people in public life have rightly been subject. That was the general point. In relation to the particular application of the powers, he has rightly identified some issues. As I said earlier, the subject of the susceptibility of MPs to the legislation is an area we are considering at the moment and that we will continue to explore.
I think that we are making some progress. Amendment No. 98 provides that no force can be used by the commission in its use of power of entry in paragraph 1. That is already the case. If the commission were to be authorised to use force to gain entry to premises, that fact would need to be set out in statute. In the absence of such a statement, it follows that the commission cannot use such force. That is evident in the statement given in paragraph 3(3) that a police constable may use
such force as is reasonably necessary.
Without that wording in the paragraph 1 power, no force can be used to gain entry to premises.

Jonathan Djanogly: Is the Minister therefore saying that a constable would have to be present for the power of entry to be exercised? I think that was the implication of what he just said.

Michael Wills: If force were to be used. The commission cannot use force under the Bill to effect entry. I hope that the hon. Gentleman will not press the amendment on the basis that it is not necessary.

David Howarth: I am not sure whether the Minister is saying that, as it stands, the schedule implies that the commission can call on a constable to help it enter premises using force. In fact, some case law suggests that that might be possible. Alternatively, is the right hon. Gentleman saying that the schedule does not authorise anyone to use force to enter premises? [Interruption.] Mention has been made from a sedentary position of paragraph 3(3). The trouble is that that is about investigatory powers and Government amendment No. 123 would separate what is stated under that paragraph from what is stated under paragraph 1. We need more clarity about how the proposals would work together.

Michael Wills: If the commission were authorised to use force, it would have to say so under the Bill. It does not, so it follows therefore that it cannot. However, a police constable may use force. I hope that I have made the position more clear, and that the hon. Gentleman accepts that the amendment is not necessary.

Jonathan Djanogly: Is the Minister saying that, if a constable is not taken along, and the commission is not allowed in if it turns up at the premises, it has to go away again? Does that mean that it will have to go to the premises with a constable?

Michael Wills: It would depend on the circumstances. If force is necessary, there would have to be a warrant and a constable may use such reasonable force as is necessary. That is the point. The commission is not authorised to use force. It would not necessarily have to go to the premises. Some things could be consensual.

Jonathan Djanogly: Is the Minister saying that the power would normally be used pre-emptively? Will he say how it is likely to be used?

Michael Wills: With respect to the hon. Gentleman, I will resist the temptation to speculate on how the Electoral Commission might, in individual circumstances, seek to use the power. As I have explained, we want to give it the power as a backstop, should it be necessary for it to use it. We also hope that it will be a deterrent and encourage people to comply with regulations, and not give the commission any cause to even think about using such a power. I cannot speculate about every occasion on which the commission might or might not seek to use it.

David Howarth: I want to come back to the meaning of Government amendment No. 123 and its relationship with paragraph 3 of schedule 1, the issue that was raised from a sedentary position. It is important to get the matter straight. The amendment states that the
power conferred by paragraph 1(5) may not be used to enter premises and inspect documents for the purposes of an investigation by the Commission of the suspected offence or contravention.
Paragraph 3 refers to powers when a person is causing an offence or when a person has contravened
any restriction or other requirement imposed by or by virtue of this Act.
My original reading of Government amendment No. 123 was that, by virtue of what it states about suspected offence or contravention, it was separating paragraph 1 entirely from paragraph 3, and that nothing under paragraph 3 will apply to the right of entry under paragraph 1. That raises my original question about what does apply. We need to be clear about that because, if that is not the case, the amendment would not achieve the full separation between the inspection power and the investigatory power.

Michael Wills: We have moved on to consider the Government amendments. After issuing the hon. Member for Huntingdon with a final invitation not to press his amendments, I can ask him and the rest of the Committee to consider accepting ours. I will, if I may, come to Government amendment No. 123 after speaking to Government amendment No. 122.
We have tabled our amendments in response to concerns that have been raised. As I have said, those concerns are considerable and it is important to get the measure right. Although the commissions proposed new powers have existed in some form since 2000, and they are the same as other regulators powers, we none the less realise the sensitivity of the measure. We realise that to some extentnotwithstanding what I said about the need for politicians not to exempt themselves from scrutiny and regulationpolitics is a particular activity.
The hon. Member for Huntingdon has frequently referred to the importance of volunteers, so we have to be careful not to discourage volunteer activity. It is important that we do not criminalise inadvertent mistakes or discourage decent people, acting out of public spirit, from participating in political life. In that spirit, we have tabled our amendments.
The power in paragraph 1(5), which restates the existing powers of entry, can be exercised by the commission for the purposes of carrying out its functions and does not require a warrant. That is because the power does not allow force to be used to obtain entry. It can also be exercised only at a reasonable time.
In addition to the power in paragraph 1(5), the Bill also gives the commission a new range of powers to access information reasonably required for its investigations into suspected offences or contraventions of the 2000 Act from any person who might hold it. Paragraph 3 of proposed new schedule 19A creates a power for the commission to apply for a warrant to enter premises occupied by any person, to search those premises and to seize documents. A warrant may authorise the use of reasonable force for those purposes.
Consequently, the Bill introduces a high threshold for a warrant to be obtained under paragraph 3. The commission will need a warrant to search premises. To get it, it must satisfy a justice of the peace, on information on oath, that it has reasonable grounds for believing that an offence or contravention has been committed and that documents that have been withheld following request, or that are otherwise relevant to the investigation, are on the premises.
When exercising the warrant, the commission must be accompanied at all times by a constable. Anyone who is to accompany a constable on to the premises can do so only if named in the warrant.
We believe that those wider powers are necessary to help to ensure that the commission is equipped to conduct effective investigations into suspected breaches of the Act, in conjunction with prosecuting authorities. Nevertheless, we have noted all the concerns raised in the House about possible confusion over the powers of search and entry in paragraphs 1(5) and 3.
The Government amendment to the schedule makes it clear that if the commission suspects that an offence or contravention has occurred and it wishes to enter premises to continue its investigation, it must use its new powers of search and entry by warrant, which has all the safeguards attached.

Nick Ainger: Will my right hon. Friend give way?

Michael Wills: I will in a moment. I have given way a lot, and I am trying to clear up the confusion about what we are doing.
The commission cannot use the power under paragraph 1(5) to conduct a fishing expedition if it thinks that wrongdoing has occurred. We believe that the safeguards on the power to enter premises ensure that use of the power will be proportionate and justified, and for its proper purpose.

Nick Ainger: My right hon. Friend refers to the thresholds that are required and to a warrant that might be granted by a justice of the peace. Is he satisfied that the threshold is high enough? Should we be considering a judge in a court issuing an order, rather than a JP in a magistrates court issuing a warrant?

Michael Wills: My hon. Friend raises an important point, which we will actively consider.

Tony Lloyd: In support of my right hon. Friend the Minister considering the point made by my hon. Friend the Member for Carmarthen, West and South Pembrokeshire, this is not a trivial point. Those of us who have experience as constituency MPs of the use and, sometimes, the failure of the warrant system know that JPs, whom I am sure in all cases are estimable people, do not always ask the searching questions necessary to determine what ought to take place.
There is merit in having a higher threshold and a higher level of interrogation to force demonstration of reasonable grounds for entry to a premises. Frankly, that is not always the case in criminal law, and we should not replicate that in the Bill. I hope that my right hon. Friend the Minister will think about this matter.

Michael Wills: I am extremely grateful to my hon. Friend for his comments. He and my hon. Friend the Member for Carmarthen, West and South Pembrokeshire have made some important points and a major contribution to the debate. As I said, the Government are anxious to listen to what colleagues on the Committee have to say. We understand the concerns that have been expressed and will continue to explore what we can do to address them. In the meantime, I am extremely grateful to my hon. Friends for their contributions, which brought real enlightenment to the onward movement of the debate.
I have come to the end of my remarks. I hope that what I have said will be enough to persuade the Committee to accept the Government amendment.

Jonathan Djanogly: The Minister said that the commission is not equipped to fulfil its role. Various issues come out of that. First, we are still short on evidence as to why that is the case. Secondly, if we accept that it is the case, it does not necessarily follow that the commission needs powers of entry in connection with a donation of only a few pounds, for example. Many of the comments made by hon. Members reflect that.
My hon. Friend the Member for Isle of Wight made an important point when he said that this is not a black-and-white issue. We must consider the range of responses and gradations. The more I have heard from the Minister on this batch of amendments, the more I think that he has not totally thought through the impact and mechanics of the powers of entry.
Having said that, I am grateful to the Minister for discussing the amendments fully and putting the Governments position on the record, and for his attitude in sayingto his hon. Friends, at leastthat he will address the various concerns that have been raised. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 122, in schedule 1, page 14, line 12, at end insert
This is subject to paragraph 2(6)..[Mr. Wills.]

Jonathan Djanogly: I beg to move amendment No. 99, in schedule 1, page 14, line 22, leave out sub-paragraph (2).

Frank Cook: With this it will be convenient to discuss amendment No. 100, in schedule 1, page 14, line 32, leave out sub-paragraph (3).

Jonathan Djanogly: We move on to the part of schedule 1 that deals with powers in respect of suspected offences or contraventions. The amendments are consequential upon each other. Paragraph (1)(3) of proposed new schedule 19A, as set out in schedule 1, says what the recipient of a disclosure notice may be expected to do to comply with it. Again, I am conscious of trying to ensure clarity and avoiding repetition.
In amendment No. 88, I sought to require the commission to have reasonable suspicion that the person served with the disclosure order had committed an offence. When speaking to that amendment, I sought to strike a balance between the regulatory and enforcement role played by the commission and the right of the individual to go unhindered by arbitrary state intervention. With that in mind, and largely consequent upon that amendmentwhich, of course, failedI believe that by inserting information or or any we can do away with the need for paragraphs 2(2), 2(3) and 2(5). My rationale is as follows.
Paragraph 2 of proposed new schedule 19A is entitled:
Powers in relation to suspected offences or contraventions.
As I noted in speaking to amendment No. 88, disclosure notices should be issued in such circumstances only by the commission, and disclosure as expressed by amendment No. 99 would be of any information or documents that the commission may require for its investigation. To leave paragraphs 2(2) and 2(3) in place would therefore result in duplication, as we could give the commission the same powers with only two words rather than two sub-paragraphs. That, in turn, would increase clarity and understanding at no cost to the commissions powers of investigation.
In any event, will the Minister please address my suspicion that there could be a degree of duplication between the parts of the schedule? In that vein, will he also explain sub-paragraph (5)? If the power of entry is invoked, will it be necessary to go to a magistrate, as stated in paragraph 3, and if not, why not?

Michael Wills: The amendments would mean that the commission could not require information or documents from any person who was reasonably required to provide them for the purpose of investigating a suspected offence or a contravention.
The power to require documents becomes available when the commission has reasonable grounds for suspecting that an offence has been committed under the 2000 Act or that another contravention of the Act has occurred. Under paragraph 12 of the schedule, it is an offence to refuse to comply with such a request without reasonable excuse. We believe that the amendment would seriously hamper the commissions ability to conduct effective investigations into suspected breaches and contraventions of the Act, in conjunction with prosecuting authorities. Not only that, but the technical effect of the provision would be to make unavailable the power to seek a warrant authorising entry. That is because a warrant can be issued under paragraph 3 of the schedule only if a prior request for documents under paragraph 2(2) has been made. However, the amendment would remove that latter paragraph.

Jonathan Djanogly: Is the Minister confirming that it is necessary to go to a magistrate under paragraph 3?

Michael Wills: Yes, it is. That is exactly right. The technical effect of the amendmentagain, I am sure the hon. Gentleman is happy to concede the factwould be an unintended consequence, which I hope he would not relish.
There is cross-party consensus on the need for the commission to become a more robust regulator, but we believe that the amendments would damage its ability to do so. Removing the powers would leave the commission out of step with other comparable regulators, such as inspectors appointed under the Companies Act 1985. If the commission is granted these powers, the Government will expect it to exercise them sensibly and responsibly. When it seeks to use them, it will of course be subject to the usual requirement imposed by public law to act reasonably; its actions must also be compatible with the European convention on human rights, under the Human Rights Act 1998.
I hope that the hon. Gentleman has been sufficiently reassured that his amendment may have unintended effect. I therefore ask him to withdraw it

Jonathan Djanogly: On the basis of the Ministers helpful comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 123, in page 14, line 45, at end insert
(6) The power conferred by paragraph 1(5) may not be used to enter premises and inspect documents for the purposes of an investigation by the Commission of the suspected offence or contravention..[Mr. Wills.]

Jonathan Djanogly: I beg to move amendment No. 103, in page 15, line 1, leave out justice of the peace and insert judge in the High Court.

Frank Cook: With this it will be convenient to discuss the following: Amendment No. 12, in page 15, line 2, after may, insert , subject to sub-paragraph (1A),.
Amendment No. 101, in page 15, line 6, after Act, insert involving in excess of £10,000..
Government amendment No. 124.

Jonathan Djanogly: We move on to paragraph 3, dealing with powers of entry and search, where again it would seem that the Government have had some further thoughts since the earlier sittings of the Committee. However, we still have various concerns in relation to the provisions. Amendment No. 103 would change paragraph 3 of the schedule to require the commission to obtain a warrant from a High Court judge, rather than a justice of the peace, before it was entitled to enter premises in the course of its investigations into alleged offences under PPERA. I think this was the point made by the hon. Member for Carmarthen, West and South Pembrokeshire in his earlier intervention on the Minister. That higher judicial threshold would place a greater obligation on the commission to ensure that the reasoning behind any use of its powers of entry was legally sound.
The increased experience and expertise of a judge in the High Court would subject the commissions arguments that it had reasonable grounds to a higher level of judicial and legal scrutiny than could be expected from a justice of the peace. That would act as an important check and balance on the use of any of the powers, thereby ensuring that any cases of entry into premises were proportionate and justified.
I would be interested to hear from the Minister how frequently he thought that the powers of entry in this schedule might be used by the commission, although to judge from previous remarks he might be reluctant to give that information. I suspect that it will be infrequently, so the higher threshold would not place any significant or undue burden on the commission or prevent it from utilising its powers effectively.
There has been an almost unprecedented increase in state powers of entry under this Government, as I have explained in earlier remarks. I believe the amendment offers an important safeguard to members of the public and those involved in assisting parties. I would like to press the Minister for some clarification on the proposed mechanism for regulating the commissions use of its powers of entry. The mechanism as it stands allows the commission to seek, through a justice of the peace, a warrant for entry, where the commission has issued a notice and it has not been voluntarily complied with. Lisa Klein, director of the commissions party and election finance team, noted in the evidence session last Thursday that there were a number of different routes to force compliance.
The approach taken in the Bill, which apparently was the choice of the Ministry of Justice rather than the commission, requires the commission to apply to the magistrates for permission to go with a constable and see if it can find the answers itself. The other approach, as used in the United States, would be for the commission to ask the courts to order someone to answer the questions put to them by the commission. If they did not do so, they would be held in contempt of court and it would then become a criminal matter.
The Government proposed the former criminal route and I would like to hear from the Minister why that was the case. Furthermore, did they consider the alternative civil-type route, and if so, why was it dismissed? It is important that the main check on the commissions investigation power is through the judicial system. The commission is acting as a regulator separated from the Government and if the separation is not maintained, its legitimacy will break down.
Further, while potentially cumbersome, an affected individual or group has the right to judicial review of the commissions actions. As such, it is imperative that we ensure that the Government have chosen the correct route for regulation of the commissions powers in the Bill.
On a final point, I would like to ask the Minister how the Government consulted on the proposals to give the commission these powers and the safeguards that are attached to them. Again, are the powers proportionate given their powerful scope? We are not yet convinced.
Amendment No. 101 is a consequential amendment following amendment No. 124, which we debated previously. It aims to bring in a threshold of £10,000, which would mean that the powers of entrance and search could be used only in respect of the larger issues, which seems a more proportionate approach.
Finally, Government amendment No. 124 introduces a new sub-paragraph into paragraph 3 of schedule 1, adding a further safeguard that gives the commission wide-ranging powers of entry. Our starting point was one of concern about the lack of safeguards in the paragraph and about the need to redress the balance between powers and safeguards. We therefore welcome this Government amendment as a first step along the road to a clearer and more proportionate allocation of the powers of entry. However, I have a few small concerns about the amendment that I hope the Minister will address.
My first concern is about the form and duration of the chief executives authorisation. We would like the measure to specify that any authorisation must be specific to each case and warrant, in order to avoid blanket authorisation being given. Will that be the case? Further, we would like a reasonable time limit to be placed on such authorisations, so that they have an expiry date and cannot be used further down the line as a basis for further search warrants during the same investigation.
We would like the appointment system regarding alternatives to the chief executive to be tightened up through the addition of a need for the agreement, or at least consent, of the Speakers Committee to the proposed replacement. We would also like a time limit to be placed on the authorisation of that person as a replacement. Finally, we would like any such appointment to be made public within five days by way of notice in the London Gazette.
Those changes would not place an unnecessary burden on the commission, given that it is unlikely that such warrants will be an everyday occurrence and that the absence or inability of the chief executive to approve them will be even rarer. The important measures that I have outlined would ensure that the safeguards operate effectively. As welcome as the Governments amendment is, it has the feel of something that was rushed out on Friday on a reactive basis. That rather underlines our point that more time is needed between evidence and drafting sessions. The amendment does not go far enough to allay our concerns about this paragraph, and I look forward to hearing the Ministers comments on it.

David Howarth: My starting point with this amendment is that it seems a little over the top to require a High Court judge, who does not normally deal with warrants in criminal cases, to grant a search warrant in relation to a fairly minor offence. The point that the hon. Member for Huntingdon made about High Court judges experience is quite wrong; they have virtually no experience in giving search warrants, because most search warrants are given by justices of the peace. That is, presumably, why the Bill specifies that it should be a justice of the peace.
At first then, the amendment seems quite extraordinary, but there is a point to be made. The Bill brings together the situation in paragraph 3(1)(a), in which someone is suspected of having committed a criminal offence, for which it would be entirely normal to get a search warrant from a magistrate, and the situation in paragraph 3(1)(b), in which someone has
contravened (otherwise than by committing an offence) any restriction or other requirement imposed by or by virtue of this Act.
It is the words in parentheses that cause the problem. We are considering the grant of a search warrant in a situation in which no one is suspected of having committed a criminal offence.
In civil law, there are equivalents to search warrants. They used to be called Anton Piller orders in the old days, but then they were renamed with a not very fancy name. In civil law, if one wants to do something similar to what is done in criminal law, one has to go further up the judicial chain. That is the problem with this provision. I have no problem with a justice of the peace issuing a search warrant in a criminal case, but I do have a bit of a problem with that if no criminal offence is suspected.

Jonathan Djanogly: The hon. Gentleman said earlier that the nature of many of these powers would or should be through the civil rather than the criminal route. Is not he proving that I did have a point to make?

David Howarth: I accept that point, because the Bill conflates criminal and non-criminal aspects, and it is not right to have the same procedure in each case. That adds a layer of complication, and it is entirely over the top to require a search warrant from a High Court judge in an ordinary criminal case.

Andrew Turner: I would like the Minister to help me with the question of what happens when things are taken away. Paragraph 8 of the schedule says that documents include any books or records. If there is a room full of computers, people can walk in, collect the computers and walk out again. If this happened in the middle of an election, one can imagine the damage caused to election organisers. Is there any provision to take copies of what you have got and keep them? Obviously, some computers have to be removed, perhaps all of them, but should there not be a power to keep copies?

Michael Wills: I have already made it clear that we are prepared to look at the question of judicial oversight. I hope that in the light of that the hon. Member for Huntingdon will withdraw his amendment, but I do want to assure him that we are exploring this. We have to consult the judiciary, among others, as to feasibility. We have to take into accountand I am sure the judiciary will take into accountthe sort of points raised by the hon. Member for Cambridge.
The points made by my hon. Friends, the Members for Carmarthen, West and South Pembrokeshire and for Manchester, Central are well taken. We recognise the need to reassure the House on this. These are important powers that we do not expect to be used often. Perhaps the tightening of judicial oversight will be a way of providing extra reassurance. I am sorry I cannot be more specific and enlighten the Committee at this stage as to exactly what we are proposing but I will come back to the Committee or the House at some point.
The hon. Member for Huntingdon asked whom we consulted. As I have said already, the White Paper was published in June, the Bill was published in July, and we consulted widely on both, including with the Opposition parties. I hope that will give him some comfort that we have taken our obligations to consult very seriously.
The hon. Gentleman also raised the question of why we rejected the approachapparently suggested by the Electoral Commission in its evidencethat we should go down the US route of applying for a court order and then a sanction being contempt. This was an interesting contribution from the Electoral Commission. The warrant approach is in the tradition of this country. We were not aware that the Electoral Commission favoured a different approach to it. If that is indeed its positionthat it would prefer to go down that routewe are happy to explore that with it and come back to this Committee. There are arguments against this route but, as it is the Electoral Commission that will have to apply the powers, we think its views important. We have not had the opportunity to discuss this with it but we will. I hope that gives some comfort.
The hon. Member for Isle of Wight raised an interesting point. I know he is much concerned about what will happen during an election campaign. He raised similar concerns on Second Reading about the effect of the exercise of these powers. He has made some very good points about that. The answer is that it will depend on the individual circumstances. The warrant will authorise what happens. He is right that the provision does include computers. That does come within the ambit of this but it will be for the warrant to take stock. He makes a valuable point. We will take it away and see if there is anything that can be done.
We are also reflecting on some of other hon. Gentlemans other points about the operation of the powers during an election campaign, as I think he is aware. They are important points, as we do not want any disruption to the normal process of an election campaign. We do not necessarily think that the commissions capability as an effective regulator will be interfered with. I hope that on the basis of what I have said, the hon. Member for Huntingdon will feel able to withdraw the amendment.
I hope also that the extra safeguard that we are introducing in Government amendment No. 124 will be acceptable to the Committee. It produces an extra safeguard before a warrant can be issued under paragraph 3 of proposed new schedule 19A. We have tabled it in response to the concerns expressed on Second Reading that the powers may be mishandled or treated too casually by the commission. Under the Bill as drafted, to obtain a warrant to enter premises to investigate a suspected offence or contravention, the commission must demonstrate on oath to a justice of the peace that it has reasonable grounds for believing that an offence has been committed and that documents that have been withheld following a request, or that are otherwise relevant to the investigation, are on the premises. In addition, as we have said, the commissions must be accompanied by a constable at all times when exercising a warrant.
It is worth emphasising again that a warrant can only ever be applied for when there is a history of a lack of co-operation by the subject of an investigation or by someone who holds useful information. Whether a warrant is issued is not in the commissions gift. It must convince a justice of the peace, or possibly a higher judicial authority, that it really needs to enter the premises to get hold of relevant documents that it believes are there.
Of course we recognise the concerns that have been expressed, and as I have said, I want to meet them while still ensuring that the commission retains effective powers where necessary. The effect of the amendment will be to ensure that no application can be made for a warrant to enter and search premises without the written authorisation of the chief executive of the commission. If that office is vacant or the chief executive is absent or unable to act, the authorisation will come from a member of staff of sufficient seniority, who has previously been designated by the chief executive for the purpose and whose designation is still in force.
The hon. Gentleman launched a number of probing questions about the time limit and whether the Speakers Committee should have oversight. I am certainly happy to raise those points with the Electoral Commission. As the regulatory authority, it is obviously important that we ascertain its views, and it will be influential in deciding how we proceed. However, although I am not closing my mind, I say to him as a first response to his questions that there could be some difficulty. It would be one thing if the post of chief executive were vacant for a considerable time, but the Government amendment covers his being
absent or unable to act.
That might mean a temporary illness or something like that. We need to be careful about introducing procedures that are too cumbersome and would interfere with the commissions ability to discharge its duties effectively.

Tony Lloyd: It is quite clear that there is a real attempt to raise the threshold, but I share the hon. Member for Huntingdons desire to probe the matter. The wording could, ironically, allow the office junior to be routinely designated. I know that that is not the Ministers intentionthat is clear from what he has just told us. Would it be worth considering a form of words that would guarantee that the power will not be routinely delegated to an inappropriate level? It is not likely that the chief executive would want that, and I know that it is not the Ministers intention, but as often in life, we need to ensure that our intentions of today are honoured in 15 years.

Michael Wills: I agree with my hon. Friend that we cannot be too careful, but such a scenario is extremely unlikely. As I have said, I have an open mind on this and I am perfectly happy to consult the commission. It would certainly not want to trivialise the power in the way that he suggestswhy would it? There would of course be a test of seniority and experience, and I know that my hon. Friend uses the office junior as an extreme example to make his point, but the general point is valid. We want to ensure that there is sufficient seniority. I think that the hon. Member for Huntingdon was probing how we define that and ensure that it is at an appropriate level. Those are perfectly fair points. I would be very happy to explore them and we will do so with the Electoral Commission. With that, I hope that the Committee will be prepared to support our amendment.

Jonathan Djanogly: The Minister has said that he will review the need for judicial oversight and the form of the warrant process. I am grateful for that. It is necessary given the current state of the clause. He also said that he would discuss with the Electoral Commission whether the US civil-type approach would be suitable. That would be helpful too. I am also pleased that he will be taking up my questions on his amendment with the Electoral Commission and I should be grateful if he would circulate its reply to the Committee. That would be important for our later deliberations. On that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 124, in schedule 1, page 15, line 38, at end insert

Authorisation of application for warrant under paragraph 3
(1) An application for a warrant under paragraph 3 may not be made without the written authorisation of
(a) the chief executive of the Commission, or
(b) where the office of chief executive is vacant or the chief executive is absent or unable to act, a member of the staff of the Commission who has previously been designated by the chief executive for the purposes of this paragraph and whose designation is still in force.
(2) A person may be designated under sub-paragraph (1)(b) only if the chief executive considers the person to be suitable having regard to the persons experience and level of seniority as a member of the staff of the Commission..[Mr. Wills.]

Jonathan Djanogly: I beg to move amendment No. 25, in schedule 1, page 15, line 41, leave out three months and insert
42 days from the date on which they were seized..

Frank Cook: With this it will be convenient to discuss the following amendments:
No. 26, in schedule 1, page 15, line 45, leave out from within to proceedings and insert
42 days from the date on which they were seized..
No. 27, in schedule 1, page 16, line 2, at end insert
(2A) The Commission may apply a magistrates court to extend this 42 day period by a further 14 days where they can prove on reasonable grounds that the continued retention of such documents is vital to the investigation into offences under this Act which involve in excess of £10,000..

Jonathan Djanogly: We now move on to paragraph 4 which deals with the retention of documents. When read together, amendments Nos. 25 and 26 seek to insert a court-based safeguard into an otherwise possibly arbitrary power for the commission to withhold documents. The current entitlement as proposed in the Bill is three months or 90 calendar days. My amendment would reduce that initial time frame by half, but would add in the power to have that extended on application to a magistrate by a further 14 days.
This inserts an important judicial safeguard mechanism into the Bill to prevent the commission from holding documents for an unnecessarily long period of time and thereby potentially placing an individual or group in a very difficult position. The retention of documents can cause significant disruption to individuals, businesses and groups. We must ensure that we strike a balance between the desire to have an effective regulator in the commission and the ability of those under investigation to continue their lives as unhindered as possible. After all, we are all innocent until proven guilty but the way the current provision in the Bill is drafted seems, to my mind at least, to flip that principle on its head.

Michael Wills: As the hon. Gentleman has explained, the amendments seek to alter paragraph 4 and the length of time for which any documents may be retained. I am curious about how he alighted on the figure of 42 days. [Laughter.]

James Duddridge: Is that wise?

Michael Wills: I am interested that he seems to believe that it is a relatively short period of time.
As we have said, the amendments would impact significantly on the commissions ability to give proper consideration to documents, which it requires for the purposes of investigating a suspected breach or contravention of the Act. It is open to the commission to return documents before the three-month period expires if there is no reason to retain them any longer. Furthermore, the commission can retain documents for more than three months only in specific circumstances covered in paragraph 4. Forty-two days is not a sufficient time limit within which to expect the commission to have considered documents or taken steps it considers appropriate to pursue an investigation into a suspected breach of the Act.
Indeed, it could require the commission to reach a decision about whether to take proceedings unnecessarily quickly. I am sure that the hon. Gentleman would not have intended that to be a consequence of the amendment. That could lead to proceedings being abandoned, unnecessary stress and disruption, and everything else that goes with that, when a longer period might have shown that there was sufficient evidence to justify the proceedings or, equally seriously, to err on the side of taking proceedings where the evidence later turns out to be insufficient.
It is hard to see how an amendment that risks having either effect could be anything other than damaging to the regulatory regime that proposed new schedule 19A seeks to support. I do not think that the proposed extension period in amendment No. 27 properly addresses that point, not least because the sorts of offence or contravention to which the power to enter may relate will not always have a quantifiable monetary value. It is in everyones interests to ensure that a proper balance is struck between the needs of the commission to have time to consider what evidence it has before it and the needs of the person whose documents have been taken to know what is to be done with them and to have them returned within a reasonable period, if proceedings are not to be taken.
Our proposal reflects the approach taken by Parliament towards other regulators and, therefore, is based on a workable precedent. I hope that the hon. Member for Huntingdon will withdraw his amendment.

Jonathan Djanogly: The Minister said that he was concerned that the impact of the amendments could be that the Electoral Commission would have to take a faster decision than it otherwise would, which could lead to a bad decision. I take his point, but I have tried to address that issue by saying that the commission would have the right to go back to the magistrate to request a further 14 days, and I would not have a problem with that being a recurrent right, on the basis that the commission would have to justify its wish to keep the documents. For the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Further consideration adjourned.[Ian Lucas]

Adjourned accordingly at three minutes to Eight oclock till Thursday 13 November at Nine oclock.